State v. Silver

• Decision Date: 20 January 1965
• Parties: The STATE of Oregon, Respondent, v. Eli Larry SILVER, Appellant.
• Court: Oregon Supreme Court

Page 178

398 P.2d 178

239 Or. 459

The STATE of Oregon, Respondent, v. Eli Larry SILVER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton

Oct. 27, 1964.

Decided Jan. 20, 1965.

Thomas E. Brownhill, Eugene, argued the cause for appellant. On the briefs were Paul A. Thalhofer, Pendleton, and Riddlesbarger, Pederson, Brownhill & Ingerson, Eugene.

Michael S. Killoran, Deputy Dist. Atty., Pendleton, argued the cause for respondent. With him on the brief was Richard J. Courson, Dist. Atty., Pendleton.

Before Mc,ALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

PERRY, Justice.

The defendant was convicted of the crime of obtaining money under false pretense, and from the judgment entered on the verdict appeals.

The defendant's first assignment is that the trial court erred in failing to sustain his demurrer to the indictment based on his contention that the criminal action was not commenced within three years after the crime was alleged to have been committed.

The facts upon which this issue rests are not in dispute. The crime was alleged to have been committed on February 17, 1960. On November 15, 1962, an indictment was returned by the grand jury charging the defendant with committing the crime of obtaining money under false pretenses. This indictment was dismissed at the request of the state on March 20, 1963, and by order of the trial court was resubmitted to the grand jury. On April 3, 1963, the grand jury returned the indictment upon which the defendant was convicted, stating in the indictment that this was the same crime as had been considered by the former grand jury.

These facts disclose that the indictment returned, upon which the defendant was convicted, was found and filed more than three years after the alleged crime was committed.

The state contends that the prosecution of the defendant was commenced when the indictment of November 15, 1962, was found and filed.

It is the general rule, that, in the absence of a statute which expressly tolls the statute of limitations, such as is now provided in federal criminal procedure, the filing of an indictment upon which no conviction or judgment can be had by reason of its dismissal will not operate to bar the operation of the statute, and, therefore, a subsequent indictment returned for the same crime, even though authorized by a court order of resubmission after the statutory period has expired, is insufficient to sustain a conviction. United States v. Ballard, 3 McLean 469, Fed.Cas.No. 14,507; United States v. Baker, 2 Cir., 50 F.2d 122; State v. Bilboa, 38 Idaho 92, 98, 222 P. 785, reversing judgment on rehearing in 38 Idaho 92, 213 P. 1025; State v. Disbrow, 130 Iowa 19, 106 N.W. 263, 8 Ann.Cas. 190; State v. Baker, 3&0 La.Ann. 1134, overruling State v. Cason, 28 La.Ann. 40; State v. Morris, 104 N.C. 837, 10 S.E. 454; Redfield v. State, 24 Tex. 133.

On the other hand, the courts of Tennessee and Oklahoma have reached the opposite conclusion, based upon the statutes of those states. Thacker v. Marshall, Okl. Cr., 331 P.2d 488; Hickey v. State, 131 Tenn. 112, 174 S.W. 269.

Statutes of limitation are of statutory origin and divergent results reached by different state jurisdictions rest on construction of statutes which determine when a prosecution is deemed commenced.

An examination of the statutory requirements set out in Hickey v. State, supra, discloses that a prosecution is commenced in Tennessee by the issuance of a warrant or by binding over the offender.

In Thacker v. Marshall, supra, the court points out that a prosecution is commenced under the Oklahoma statute at the time the preliminary complaint or information is filed with the magistrate in good faith and a warrant issued thereon.

It is, therefore, clear that under such statutes the dismissal of an indictment because of defect is but an interim occurrence in the course of a prosecution commenced with the filing of a complaint and issuance of a warrant.

ORS 131.130 provides:

'An action is commenced, within the meaning of ORS 131.110 and 131.120, when the indictment is found and filed with the clerk of the court or, in cases triable without indictment, when the indictment or complaint is filed or lodged in the court or with the officer having jurisdiction of the action.'

This statute clearly states that a felony which must be prosecuted by indictment, as in this case, is commenced only after an indictment is found by the grand jury and the indictment is filed with the clerk of the court. Therefore, excluding murder or manslaughter, unless a felony indictment is returned and filed within three years, no prosecution may be had for the offense. ORS 131.110 .

Our statute is almost identical in its requirements with that of the state of Iowa. That court held in State v. Disbrow, supra, 130 Iowa 19, 106 N.W. 263, in keeping with the majority rule, that the finding and filing of an invalid indictment did not toll the statute of limitations, and, therefore, the order of the trial court remanding the matter to the grand jury would not extend the time limitation. The court stated, 106 N.W. page 266:

'It seems to us a reasonable and just proposition that, in the absence of any statute saving such right to the state, the running of the statute of limitations ought not to be interrupted or suspended by the return and pendency of an indictment upon which no valid conviction or judgment can be founded. Such an indictment is no indictment. It is a nullity, and while it may serve as authority for the trial court to continue the defendant in custody and cause a resubmission of the case to the grand jury, such order is in effect the mere direction that the...