Citation Numbers: 8 R.I. 273
Judges: BRAYTON, J.
Filed Date: 3/6/1866
Status: Precedential
Modified Date: 1/13/2023
By the agreed statement of facts, it appears that more than three years had elapsed after the commission of the perjury charged in this indictment before the finding by the grand jury. By the provisions of the Revised Statutes, chapter 222, section 34, limiting the finding of an indictment to three years after the commission of the offence, this indictment would be barred, and no conviction thereon would be warranted or sustained. It appears also, by the statement of facts, that an indictment for the same offence was found by the grand jury within three years, which, however, was lost, and has never since been found, so that the accused could be put upon his trial thereon. It appears also, that after the expiration of three years and after the loss of the indictment, the General Assembly passed the following amendment to chapter 222, viz.: "If any indictment, found within the time limited in and by the statute to which this is an amendment, shall be stolen, lost or destroyed before a judgment shall have been rendered thereon, a new indictment may be found for the same offence, at any time within one year after the theft, loss or destruction of the original indictment." After the passage of this amendment and within one year after the loss of the first indictment, but more than three years after the commission of the crime, a new indictment was found for the same offence. This second indictment was also lost, and thereupon a third indictment for the same offence was returned by the grand jury, at the September term, 1865, within a year after the loss of the second indictment, but more than one year after the loss of the first.
The Attorney General, admitting that by the provisions of the Revised Statutes, this indictment is invalid and should be quashed, argues that it is made good by the provisions of the amendment before recited, because, as he says, the first indictment was found within the time limited by the original act, the second within one year after the loss of the first, and the third *Page 276 within one year of the loss of the second. This view is not supported by the language of this enactment. The new indictment authorized to be found is one which shall be found within one year after a prior indictment for the same offence has been lost and within one year after the loss of the original indictment, the original indictment having been found within three years.
This indictment is not found within one year after the loss of the original, nor within one year after the loss of any indictment found within three years after the commission of the offence, and so the finding is not warranted by the amendment.
But if this were not so the indictment cannot be sustained. At the time of the passage of this amendment, the period of limitation for such an indictment had already elapsed, and the indictment found had before then been lost. It is not necessary to consider whether this new enactment could be regarded as expost facto and void, if it had professed to retroact. It does not so profess, but is prospective, providing a remedy for the future. *Page 277