Bustamante v. District Court of Third Judicial Dist.

• Decision Date: 22 September 1958
• Docket Number: No. 18701,18701
• Parties: Ed BUSTAMANTE, Plaintiff, v. The DISTRICT COURT OF The THIRD JUDICIAL DISTRICT, State of Colorado; and The Hon. John N. Mabry, Judge Thereof, Defendants.
• Court: Colorado Supreme Court

Page 1013

329 P.2d 1013

138 Colo. 97

Ed BUSTAMANTE, Plaintiff, v. The DISTRICT COURT OF The THIRD JUDICIAL DISTRICT, State of Colorado; and The Hon. John N. Mabry, Judge Thereof, Defendants.

No. 18701.

Supreme Court of Colorado, En Banc.

Sept. 22, 1958.

Carmel A. Garlutzo, Trinidad, for plaintiff.

Duke W. Dunbar, Atty. Gen. of State of Colorado, Frank E. Hickey, Deputy Atty Gen., O. F. Adams, Dist. Atty. of Third Judicial District, Trinidad, for defendants.

SUTTON, Justice.

The parties will be referred to herein by name.

On February 28, 1955, a grand jury returned an indictment under C.R.S. '53, 40-19-3, which provided in pertinent part that:

'* * * Ed Bustamante, late of the County of Las Animas, State of Colorado, then and there being a duly elected officer * * *, to-wit, a duly elected * * * and acting County Clerk and Recorder of * * * the County of Las Animas * * *, did, between the dates of May 24, 1953, and October 19, 1954, wilfully, unlawfully, corruptly and feloniously use, make way with, secrete, and convert to his own use the sum of $1,689.00, * * * being a portion of the public funds or moneys * * *.'

Bustamente was tried under this indictment, convicted by a jury and sentenced to the state penitentiary. In Bustamante v. People, 133 Colo. 497, 297 P.2d 538, this court reversed the judgment, one of the grounds being that the offenses charged were misdemeanors and not felonies, hence a penitentiary sentence under C.R.S. '53, 40-19-3, was unauthorized.

In Bustamante v. People, 136 Colo. 362, 317 P.2d 885, we reversed a conviction of this defendant on an information charging some of the same acts, on the ground that he was placed in double jeopardy by the state when it proceeded to try him by information upon some of the offenses charged in the original indictment while the first conviction was pending on writ of error in this court.

Bustamante now seeks relief against a second prosecution on the original indictment by original proceeding in the nature of prohibition. He urges that the offenses charged being misdemeanors and not being separately stated fall within the bar of C.R.S. '53, 39-1-3 which provides in pertinent part:

'No person shall be prosecuted, tried or punished, for any misdemeanor or other indictable offense below the grade of a felony * * * unless the indictment, information or complaint, * * * shall be found or instituted within one year and six months from the time of the committing of the offense * * *.

'Nothing herein contained shall extend to any person fleeing from justice. * * *.'

The petition and briefs here disclose that this indictment was returned February 28, 1955, and that Bustamante was not a fugitive from justice at any time. February 28, 1955, was twenty-one months and seven days after May 24, 1953, the first date alleged; however an amended motion to quash the indictment on the grounds above stated was overruled by the trial court and a trial date was set.

The people urge that this is not a suitable case for application of prohibition and that Bustamante must proceed to trial and urge the statute of limitations by way of defense. We do not agree.

There is a diversity of opinion in various jurisdictions as to the effect of the statute of limitations in cases like this, but no apparent conflict exists as to the applicability of prohibition where the statute is held to be a bar to prosecution. Colorado has not had uniformity in its adoption of a consistent rule as to the effect of the statute of limitations. Packer v. People, 1899, 26 Colo. 306, 57 P. 1087; Wentzel v. People, 1913, 55 Colo. 33, 133 P. 415; Thorp v. People, 1942, 110 Colo. 7, 129 P.2d 296, and Herman v. People, 1951, 124 Colo. 46, 233 P.2d 873, show the uncertainty prevailing in the prior opinions of this court.

In the Packer case supra it was held that it is not necessary to allege in an indictment the exception that relieves it from the bar of the statute of limitations, such as that the defendant was a fugitive from justice during all or a part of the period of limitation. Packer had been indicted for the murder of five men; the crime was alleged to have been committed in March, 1874. He was first tried on those charges in 1883 and his conviction of murder reversed in 1885 in 8 Colo. 361, 8 P. 564. Later five separate indictments were returned, one on April 6 and the others on April 7, 1883, nine years after the alleged commission of the offenses. The death sentence reversed in 8 Colo. 361, 8 P. 564 was on the ground that the sections of the criminal code prescribing the punishment for murder were repealed by the legislature without a saving clause after the crime was committed and before the conviction was had. The cause was remanded for a new trial for the crime of manslaughter, an included offense in the specific crime of murder charged in the indictments. A second trial was had resulting in a conviction of the crime of voluntary manslaughter and Packer was sentenced accordingly. On writ of error to this court (26 Colo. 306, 57 P. 1087) it was urged that the conviction was invalid as barred by the statute of limitations, the offense having been committed more than nine years before the indictments were returned, and there being no exceptions alleged to remove the case from the bar of the statute. It was held, however, that if a defendant desires to take advantage of the statute of limitations, it is a matter of defense to be specially pleaded or raised at the trial under the evidence under a plea of not guilty, and that exceptions in the statute need not be negatived by the prople in the indictment. In support of its conclusion the court quoted extensively from United States v. Cook, 17 Wall. 168, 21 L.Ed. 538. A careful examination of the last Packer opinion discloses that the court assumed, but did not decide, the vital question of whether the defendant could urge against the indictments charging murder the same objections he might if they had specifically charged manslaughter only.

The statute of limitations considered in Packer read:

'No person or persons shall be prosecuted, tried or punished for any offense denominated by the common law felony, (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 * * *.'

Gen.Stats.1883, Ch. XXV, Sec. 975.

The acceptance in Packer of the rule in United States v. Cook, supra, was improvident. We cannot agree that the Cook case enunciates the better rule when it states:

'Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitations * * *. Nor is it admitted that any different rule would apply in the case even if the statute of limitations did not contain any exception, as time is not of the essence of the offense * * *.' (Emphasis supplied.)

The Packer case has been cited in Wentzel v. People, supra, and in Thorp v. People, supra.

In Wentzel, the felony of incent was charged by an information filed August 8, 1907, to have been committed on September 25, 1905. This was within the three years permitted by the statute, thus Packer was not applicable.

In Thorp, the felony charged was one embezzlement made on October 11, 1939. Similar offenses committed on December 30, 1937, and February 27, 1940, were admitted into evidence to show intent and scheme to defraud. It was held that it was not error to admit the evidence of prior offenses because the crime charged was well within the three year period. The court stated in Thorp that the statute of limitations was a matter of defense. Packer was the cited authority therefor.

The point in regard to the statute of limitations is that in Packer v. People, supra the statute did not apply, since the charge was that of murder in pending indictments, and though Packer's first conviction was had for a crime committed on March 1, 1874, (8 Colo. 361, 8 P. 564) trial of the included crime of manslaughter could proceed after reversal and was not barred by the statute of limitations.

To the extent that Packer (26 Colo. 306, 57 P. 1087) and Wentzel and Thorp, which followed it, are in conflict with the views herein expressed, they are overruled.

The better rule which we adopt is that time is material and must be alleged in an indictment or information when the crime alleged to have been committed is one which the statute of limitations bars from prosecution after the period prescribed. When the time so alleged shows on the face of the charge that it is barred by the statute of limitations, it is necessary that the indictment or information expressly allege one or more of the exceptions provided by the statute, otherwise the application of the statute is automatic. This is true whether the crime be a felony or a misdemeanor. (See 27 Am.Jur. 636, § 74, for a discussion of the rule on defective indictments.)

Our statute is clear and if a defendant can bring himself under its protective cloak, he may assert his right any time and in any manner.

Indictments of course must be specific in other essential details and must contain sufficient express averments to enable the trial court to determine that it has jurisdiction on other matters as well. 27 Am.Jur. 624, § 58.

Herman v. People, supra, is the first time that this court had indicated it would not follow the Packer case--though that case was not mentioned therein. This was a larceny case involving the use of the date September 12, 1940, in the information instead...