State v. Bilbao

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: State v. Bilbao, 38 Idaho 92, 222 P. 785, 213 P. 1025 (Idaho 1923)
• Decision Date: 31 March 1923
• Parties: STATE, Respondent, v. VICENTE BILBOA, Appellant

213 P. 1025

38 Idaho 92, 222 P. 785

STATE, Respondent, v. VICENTE BILBOA, Appellant

Supreme Court of Idaho

March 31, 1923

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Appeal from judgment of conviction for having possession of intoxicating liquor. Affirmed.

Affirmed.

Frawley & Koelsch, for Appellant.

Appellant contends that his prosecution upon this charge is barred by the statutes. The charge against the defendant contained in this information is a misdemeanor, and under the provisions of C. S., sec. 8073, is barred within one year after its commission. The time of the commission of such an offense is a jurisdictional fact upon a prosecution therefor. (State v. Steensland, 33 Idaho 529, 13 A. L. R. 1442, 195 P 1080.)

"The United States, Illinois, Missouri, Nebraska, New York and some other jurisdictions have statutes requiring that the indictment be filed within a specified period after the commission of the offense. Under such statutes, it is generally held that failure to lodge a valid indictment or information, as the case may be, within the specified period bars prosecution." (Davenport v. State (Okla Cr.), 202 P. 18.)

The Iowa statute is almost verbatim with that in Idaho. (State v. Disbrow, 130 Iowa 19, 8 Ann. Cas. 190, 106 N.W. 263.)

Though a complaint be filed before a magistrate, who at the request of the accused continued the hearing from time to time until the year had expired, such pendency of a prosecution does not toll the bar of statute of limitations. (People v. Ayhens, 85 Cal. 86, 24 P. 635.)

Idaho has no statute authorizing an amendment to an information, and this information purports to be and is a new information, filed in pursuance of the order of the court to that effect and by authority of C. S., sec. 8874. (People v. Clayberg, 26 Cal.App. 614, 147 P. 994; Ex parte Chambers, 32 Cal.App. 476, 163 P. 223.)

A. H. Conner, Attorney General, and Jas. L. Boone, Assistant, for Respondent.

It is not necessary in order to toll the time provided in sec. 8703, C. S., that a "valid" information be filed.

An information satisfies the provisions of sec. 8703, C. S., which informs the accused that an offense has been committed and thereby enables him to build up his defense. This section is to be given a reasonable construction. (State v. Disbrow, 130 Iowa 19, 8 Ann. Cas. 190, 106 N.W. 263.)

Any statute should be followed which expressly or impliedly tolls the running of the statute of limitations. Sec. 8874, C. S., impliedly tolls the running of the statute of limitations in this case.

The pendency of an appeal in the appellate court effectively tolls the running of the statute of limitations. (People v. Giesea, 63 Cal. 345; People v. Lundin, 120 Cal. 308, 52 P. 807; In re Bergerow, 133 Cal. 349, 85 Am. St. 178, 201, 65 P. 828, 56 L. R. A. 513.)

Keeping in mind that "the statute of limitations is not founded upon mere delay in the prosecution, but rather upon delay in commencing the prosecution" (People v. Buckner, 281 Ill. 340, 3 A. L. R. 1327, 117 N.E. 1023). C. S., sec. 9191, is applicable in this case.

BUDGE, C. J. Dunn and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This cause was before this court upon a prior appeal, the opinion being reported in 33 Idaho 129, 190 P. 248, where a complete statement of the facts will be found. The judgment of the trial court was reversed, and the cause remanded, with instructions that further proceedings be had in accordance with the views expressed in the opinion. The basis of reversal was for error committed by the court in refusing to sustain appellant's demurrer and in not requiring the state to elect upon which particular offense it would rely for a conviction. However, this court held that the failure to sustain the demurrer might have been cured had the court required the state to elect. Upon the going down of the remittitur, appellant's demurrer to the information was sustained. The court did not require the state to elect and the cause was not dismissed. The trial court under the provisions of C. S., sec. 8874, directed the county attorney to file another information, which was done. The charge in this information was within the scope of the magistrate's commitment upon which appellant was formerly held to answer, being one of the identical offenses charged in the prior information. Appellant filed a motion to quash the latter information upon the grounds that the demurrer to the former information charging the same offense had been sustained and that a further prosecution could not be had for the reason that the same was barred by the provisions of C. S., sec. 8703. This motion was denied. Upon a trial thereafter had, appellant was found guilty as charged in the information and judgment entered thereon, from which judgment this appeal is prosecuted.

Two errors are specified in appellant's brief. The only one relied upon is that the court erred in holding that the prosecution of appellant upon the charge contained in the last information was not barred by the provisions of C. S., sec. 8703.

Appellant contends that the information filed on January 29, 1917, was invalid and therefore there was no information, and that before a valid information was filed, under the direction of the court, on September 20, 1920, the statute of limitations barred the prosecution.

C. S., sec. 8703, provides that: "An indictment for any misdemeanor must be found within one year after its commission."

It is further contended that it appears affirmatively from the record that appellant was during all of the times an inhabitant of or usually a resident within the state, and therefore the prosecution would not fall within the exception recognized by the provisions of C. S., sec. 8704.

Unless the filing of the information upon which appellant was first convicted tolled the running of the statute of limitations, the prosecution was barred and appellant's contention must be sustained.

The information passed upon in the former appeal was not invalid but held to be irregular, in that it charged more than a single offense, and that the court below committed reversible error in refusing to require the state to elect. The prosecution was a continuing one. It was for the same offense and against the same offender, the state having at all times charged appellant with the crime of transporting intoxicating liquor for beverage purposes in violation of law. Had the state elected to try defendant upon this particular charge, as contained in the former information it would have sustained the conviction. (State v. Brown and Christopherson, 36 Idaho 272, 211 P. 60.) The court retained jurisdiction over appellant at all times. The fact that the court sustained the demurrer was not a final judgment upon the information and was not a bar to a prosecution for the same offense for the reason that under the provisions of C. S., sec. 8874, the court directed the county attorney to file another information in order to avoid the irregularities appearing in the former information. (In re Pierce, 8 Idaho 183, 67 P. 316.) C. S., sec. 8874, expressly provides that upon the setting aside of a defective information it is within the power of the court to direct that a new information be filed. Such action on the part of the court and the prosecuting attorney suspends the running of the statute of limitations, provided the first information is filed within one year of the date of the commission of the offense. During the pendency of an appeal the time is not to be computed as a part of the statutory time within which a prosecution may be commenced. (Davenport v. State (Okla. Cr.), 20 Okla. Crim. 253, 202 P. 18.)

It is expressly provided by statute in many jurisdictions that the time during which a prior indictment or information which has been quashed or set aside is pending on appeal shall be deducted from the period of limitations applicable to prosecutions. If we have such a statute in this state, our attention has not been called to it. However, it has been held in numerous jurisdictions that, independently of statute, the pendency on appeal of a prior information for the same offense tolls the statute of limitations, provided the disposition of the first information and the filing of the second are such as to constitute one continuing prosecution. Thus, in the case of Berkley v Commonwealth, ...