Flint v. State
| Decision Date | 30 January 1913 |
| Docket Number | 4,190. |
| Citation | 76 S.E. 1032,12 Ga.App. 169 |
| Parties | FLINT v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The issuance of a criminal warrant, in pursuance of an affidavit charging one with crime, does not arrest or suspend the operation of the limitation which requires all indictments for misdemeanors to be found and filed within two years after the commission of the offense, unless the accused himself after the issuance of the warrant, brings the case within one of the exceptions which arrests the operation of the statute of limitations. To arrest the operation of the statute of limitations, the indictment, presentment, or accusation upon which the accused may be tried must be preferred within two years.
The limitation applicable to indictments for misdemeanors under section 30, paragraph 4, of the Penal Code of 1910, applies also to accusations in the several city courts. Hence the conviction of one accused of a misdemeanor, although it is alleged in the accusation that the offense was unknown until the date when the warrant for the defendant's arrest was sworn out before a magistrate, is contrary to law and without evidence to support it, when it appears, without contradiction, that the accusation upon which the accused was tried, was not preferred or filed until more than two years after the issuance of the warrant.
Error from City Court of Lexington; Joel Cloud, Judge.
Joe Flint was convicted of crime, and brings error. Reversed.
Hawes Cloud, of Crawfordsville, for plaintiff in error.
Hamilton McWhorter, Jr., Sol., and E. P. Shull, both of Lexington, for the State.
It is unnecessary to deal with more than one of the assignments of error; for in our opinion the conviction of the accused was contrary to law, because without evidence to support it.
From the record it appears that the accused was arrested on a justice's warrant, and gave bond on March 28, 1908. In May, 1909, the prosecutor made the affidavit which is the basis of the accusation, and the accusation was preferred at the May adjourned term, 1911, of the city court of Lexington. Trial was had on May 15, 1911. It appears from each of the affidavits, and from the testimony of the prosecutor himself that the alleged offense was committed December 4, 1906. But it is alleged in the accusation, as an exception to the provisions of the statute of limitations, that the offense is not barred, "as said offense was unknown to said S. L Maxwell until the 19th day of December, 1907, shortly after which time the warrant was sworn out for the said Joe Flint charging him with the said offense." There is no conflict in the evidence as to the allegation of the accusation which is used to make an exception to the bar of the statute and to arrest its operation; and therefore the question is presented whether the mere swearing out of a warrant for the arrest of one accused of a misdemeanor, and which was not followed by the filing of an accusation for more than three years, can in any case suspend the operation of the statute, which distinctly provides that all indictments for misdemeanors must be filed within two years, and not thereafter.
It is conceded that one of the exceptions provided by law, to wit that the offense was unknown, is properly alleged, and therefore the specific question in this case is whether, although according to the allegations of the accusation the bar of the statute of limitations was arrested until the offense was known, the mere issuance of a warrant by a magistrate (who could only inquire into the probability of the guilt of the accused and require his appearance before a tribunal clothed with jurisdiction to try him) would arrest or suspend the statute of limitations indefinitely, or until it might be the pleasure of the prosecutor or state's counsel to file an accusation or indictment, as the case might be; for, if the mere issuance of a justice's warrant as soon as the offense becomes known will serve to suspend the operation of the statute of limitations, as in this case, for more than one year beyond the period prescribed by the provisions of section 30 of the Penal Code, it could just as well be used to keep the defendant under bond for 20 years. The defendant cannot demand trial until there is a case in the court which has jurisdiction to try him, until there has been either an indictment or a presentment (if the warrant is returned to the superior court), or an accusation if the warrant is returned to the city court. And hence one might, at the pleasure of a prosecutor, be indefinitely subject to the stigma of a most odious charge without any opportunity to clear his good name. Furthermore, instances may be imagined where the issuance of a warrant might be used as an instrument of oppression against one who is ignorant or friendless, or employed as...
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