Boughn v. State

• Decision Date: 16 April 1895
• Docket Number: 6439
• Citation: 62 N.W. 1094,44 Neb. 889
• Parties: JOHN H. BOUGHN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

62 N.W. 1094

44 Neb. 889

JOHN H. BOUGHN v. STATE OF NEBRASKA

No. 6439

Supreme Court of Nebraska

April 16, 1895

ERROR to the district court for Cedar county. Tried below before NORRIS, J.

REVERSED AND REMANDED.

Wilbur F. Bryant, for plaintiff in error:

A defendant in a criminal case may avail himself of the statute of limitations under a plea of the general issue. (Bishop Statutory Crimes, 264; 1 Starkie, Criminal Pleading & Practice [2d ed.], 339; Wharton, Criminal Pleading & Practice, 317; Maxwell, Criminal Procedure, 4; White v State, 4 Tex. App., 490.)

George H. Hastings, Attorney General, for the state, cited State v. Yates, 36 Neb. 287.

OPINION

IRVINE, C.

An information was filed May 1, 1893, in the district court of Cedar county charging the plaintiff in error with assault and battery committed May 16, 1891. One defense was that the prosecution was barred by the statute of limitations. The plaintiff in error sought to present this defense by objecting to the introduction of any evidence on the ground that the information on its face showed that the prosecution was barred; second, by a request for an instruction to find "not guilty" on that account; third, by presenting in the motion for a new trial the question of the sufficiency of the evidence; and fourth, by a motion in arrest of judgment. The rulings on all these points were adverse to the plaintiff in error. Some of the rulings have not been preserved for review by proper exceptions and assignments of error, still if the prosecution was in fact shown to be barred the verdict was not sustained by the evidence, and the conviction must be, for that reason, reversed unless the defense cannot be presented under a plea of "not guilty." Two questions are therefore presented: Did it appear that the prosecution was barred by the statute, and did the plea of "not guilty" present such defense?

Section 256 of the Criminal Code is as follows: "No person or persons shall be prosecuted for any felony (treason, murder arson, and forgery excepted), unless the indictment for the same shall be found by a grand jury within three years next after the offense shall have been done or committed. Nor shall any person be prosecuted, tried, or punished for any misdemeanor or other indictable offense below the grade of felony, or for any fine or forfeiture under any penal statute, unless the indictment, information, or action for the same shall be found or instituted within one year and six months from the time of committing the offense, or incurring the fine or forfeiture, or within one year for any offense, the punishment of which is restricted to a fine not exceeding one hundred dollars, and to imprisonment not exceeding three months; Provided, That nothing herein contained shall extend to any person fleeing from justice; Provided, also, That where any suit, information, or indictment for any crime or misdemeanor is limited by any statute to be brought or exhibited within any other time than is hereby limited, then the same shall be brought or exhibited within the time limited by such statute; And provided, also, That where any indictment, information, or suit shall be quashed, or the proceedings in the same set aside or ...