Alewine v. State, 38617

• Citation: 118 S.E.2d 499,103 Ga.App. 120
• Decision Date: 02 February 1961
• Docket Number: No. 2,No. 38617,38617,2
• Parties: Ralph ALEWINE v. STATE
• Court: Georgia Court of Appeals

Page 499

118 S.E.2d 499

103 Ga.App. 120

Ralph ALEWINE v. STATE.

No. 38617.

Court of Appeals of Georgia, Division No. 2.

Feb. 2, 1961.

Syllabus by the Court

Where a defendant in a criminal case is indicted and the indictment subsequently quashed or a nolle prosequi entered because of some informality therein, the State, if it desires again to charge the defendant with the same offense, must do so within a period of six months after the dismissal of the first indictment, and this is so regardless of whether or not the bar of the statute of limitations as applied to criminal offenses generally has run at the time of the new indictment.

Ralph Alewine was tried and convicted in the Superior Court of Franklin County for the offense of involuntary manslaughter. The assignments of error in his bill of exceptions are to the judgments of the trial court overruling his plea in bar and his motion for a new trial.

A. S. Skelton, Hartwell, R. Howard Gordon, Danielsville, for plaintiff in error.

Clete Johnson, Sol. Gen., Royston, Jeff C. Wayne, Gainesville, William O. Carter, Hartwell, for defendant in error.

TOWNSEND, Presiding Judge.

1. It appears that the defendant was first indicted in the Superior Court of Franklin County on October 20, 1958, for the offense of involuntary manslaughter the date of the offense being alleged to be August 6, 1958. A nolle prosequi was sought by the solicitor general and granted by the court to this indictment on March 30, 1959. In the meantime, on March 25, 1959, an indictment for murder involving the same transaction was returned against the defendant and this indictment also was nol-prossed on March 30, 1959. Thereafter, on October 20, 1959, the present indictment for involuntary manslaughter based on the same transaction was preferred against him. The defendant filed his plea in bar alleging that since the present indictment was not returned within six months after the entry of a nolle prosequi, the statute of limitations has run in his favor. This claim is based on that part of Code § 27-601 dealing with statutes of limitation for various offenses which reads as follows: 'If the indictment is found within the time limited, and for any informality shall be quashed or a nolle prosequi entered, a new indictment may be found and prosecuted within six months from time the first is quashed or the nolle prosequi entered.' This Code section has presented difficulty of interpretation in prior litigation. It is a statute of limitations. Taylor v. State, 160 Ga. 331(3), 127 S.E. 652. It does extend the limitations fixed by other provisions of Code § 27-601 so that, if the first indictment is returned within the time limited and thereafter quashed or a nolle prosequi entered for some informality and a second indictment is taken out within six months after such dismissal, the second indictment will be good although the offense charged would otherwise have been barred by the statute of limitations. Crawford v. State, 4 Ga.App. 789, 797, 62 S.E. 501; Copeland v. State, 14 Ga.App. 109, 80 S.E. 211; Hodges v. State, 98 Ga.App 97, 107, 104 S.E.2d 704. The question here is whether the statute is applicable only to save the case when the bar of the limitation attaches pending the first indictment, or whether it is a general limitation the meaning of which is that whenever the first indictment against the defendant and charging the same offense has been dismissed as therein stated, a second indictment or accusation must be brought within the six month period regardless of whether the bar of the limitation statutes generally has attached in the meantime or not.

It is strongly argued by the State that this latter is not the case. Code § 3-808 contains a somewhat similar provision in regard to civil suits reading as follows: 'If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section.' This provision has application only where the bar of the statute of limitations would otherwise apply, and does not attempt to limit the time in which a plaintiff may re-bring his case if the statute of limitations on the action has not run. Lewis v. Lewis, 132 Ga. 348(3), 63 S.E. 1114. However, Code § 3-808 was taken from Ga.L.1855-56, pp. 233, 237, which act contained the provision as to such suits that if, during the pendency of the first action 'the time within which such suit is to be brought by the provisions of this act shall expire', then the plaintiff might renew said suit at any time within six months after such termination of the case 'but this right shall only extend to one renewal.' The act of 1855-56 deals with statutes of limitation in both civil and criminal cases, but the words 'suit' and 'plaintiff' are used therein in reference to civil actions only, and the word 'indictments' seems to be used...