Gardner v. The State

• Citation: 68 N.E. 163,161 Ind. 262
• Decision Date: 09 October 1903
• Docket Number: 20,108
• Parties: Gardner v. The State
• Court: Supreme Court of Indiana

68 N.E. 163

161 Ind. 262

Gardner v. The State

No. 20,108

Supreme Court of Indiana

October 9, 1903

From Whitley Circuit Court; J. W. Adair, Judge.

William N. Gardner was convicted of the crime of rape, and he appeals.

Affirmed.

F. J Heller, T. R. Marshall, W. F. McNagny and P. H. Clugston, for appellant.

C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake and L. G Rothschild, for State.

OPINION

Jordan, J.

Appellant was prosecuted upon an indictment which charged him with having, at the county of Whitley and State of Indiana, on the 15th day of February, 1898, committed the crime of rape upon a girl under the age of fourteen years. He was tried by a jury, and found guilty, and over his motion for a new trial was sentenced by the court to be imprisoned for an indeterminate period in the state prison, disfranchised, and rendered incapable of holding any office of trust or profit. From this judgment he appeals.

The evidence upon which appellant was convicted is not before us, neither have the instructions of the lower court been certified up, except a single one thereof upon which alone appellant bases his ground for a reversal. The record discloses that the indictment was returned by the grand jury of Whitley county into the lower court and filed April 17, 1902. Appellant was tried and convicted in the following November. Instruction number two, of which appellant complains, was given by the court to the jury at the request of the State, and it is disclosed by the bill of exceptions to have been the only one given upon the particular subject-matter therein embraced and mentioned. No other instruction was given by the court which in any manner or form modified, limited, changed, or withdrew instruction number two from the jury. It is stated in the bill of exceptions that there was no evidence given upon the trial by the court which either showed or tended to show when the warrant for the arrest of the accused upon the indictment returned was issued; nor was there any evidence to establish when the warrant came to the hands of the sheriff for service. By the particular instruction in controversy the court informed and advised the jury in effect, as a legal proposition, that the prosecution was commenced when the indictment against the defendant was returned into court by the grand jury, without regard to the time when the warrant thereon was issued. As the evidence is not in the record we are not advised as to the time when the crime of which appellant was convicted was actually committed. It is insisted, however, that the charge of the court in controversy was erroneous, inasmuch as it advised the jury, in effect, as a matter of law, that the return of the indictment into court was the commencement of the prosecution, and that such return or presentment alone served to arrest the running or operation of the statute of limitations.

Appellant's counsel urge and contend that within the meaning of the laws of this State pertaining to public offenses and the prosecution thereof, a criminal action can not be deemed or held to have been commenced on the part of the State until a warrant for the arrest of the accused has been issued upon the indictment or information charging the offense. The argument seemingly is advanced that the issuing of the warrant is the act which crowns the commencement of the prosecution, and that therefore until such warrant is issued the statute continues to run in favor of the accused party. The learned Attorney-General in his brief on behalf of the State admits that the question which he concedes to be involved in this appeal is one which under the laws of this State is surrounded with more or less doubt, and that little light is cast upon the proposition by the decisions of this court. Section 1662 Burns 1901, § 1593 Horner 1901, provides that prosecutions for rape and other crimes therein mentioned may be commenced at any time within five years after the commission of the offense. It follows, therefore, in the case at bar that among other things it was essential to the conviction of the defendant that the State establish beyond a reasonable doubt that the prosecution was commenced within five years after the crime charged was committed. As the initiative step in this prosecution was taken by the State in the circuit court of Whitley county, the point presented involves the inquiry when, under such circumstances, may a criminal action or prosecution upon the part of the State be deemed and considered to have been commenced within the meaning of our laws pertaining to criminal procedure? While it is true that the legislature under our civil code has defined what shall be deemed to be the commencement of a civil action, nevertheless it has wholly failed expressly to provide what shall constitute the beginning of a criminal prosecution. In a solution of this question it is proper that we look to some of the provisions of our criminal code. Section 1799 Burns 1901, § 1730 Horner 1901, declares that the "first pleading on the part of the State is either an indictment or information." It is provided by our statutes that warrants must be issued upon informations as soon as they are filed, and that when an indictment is found the court may direct the clerk to issue a warrant returnable forthwith. If no order is made by the court the clerk is required to issue warrants upon the indictments returned within ten days after the close of the term. § 1750 Burns 1901, § 1681 Horner 1901. By § 1741 Burns 1901, § 1672 Horner 1901, it is provided that as soon as an indictment is presented, and examined by the court, or an information filed, the clerk shall indorse thereon the date of such filing or presentation, and he shall then record such indictment or information with its indorsement in a recordbook kept for that purpose. There is certainly nothing in any of these provisions of our criminal code, or in others thereof, to our knowledge, which indicates that the legislature intended that a criminal prosecution could not be considered as commenced, so as to arrest the operation of the statute of limitation, until the clerk has issued a warrant upon the indictment or information in the particular case.

An examination of the decisions of this court reveals the fact that for a period of over forty years the court has considered the return of an indictment as constituting the commencement of a prosecution.

Jones v. State, 14 Ind. 346, decided in 1860, was a prosecution for receiving stolen property. Davison, J., in that appeal, in passing upon the question as to whether the action was barred by limitation, said: "The indictment, which was the commencement of the prosecution, was found October 12, 1859. * * * We are of opinion that the statute of limitation commenced running, in this case, in September, 1856, when the defendant received the stolen mare, and therefore continued to run. It follows, this prosecution, not having been commenced until the 12th of October, 1859, is barred by the statute."

In State v. Hoke, 84 Ind. 137, the accused was charged with the crime of larceny. Elliott, J., in that case said: "The second count of the indictment preferred against the appellee charges the...