State v. Simpson

Decision Date09 January 1906
Docket Number20,703
Citation76 N.E. 544,166 Ind. 211
PartiesThe State v. Simpson et al
CourtIndiana Supreme Court

Rehearing Denied February 21, 1906, Reported at: 166 Ind. 211 at 217.

From Putnam Circuit Court; Presly O. Colliver, Judge.

Prosecution by the State of Indiana against Benjamin Simpson and another. From a judgment quashing the affidavit and information, the State appeals.


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

George A. Knight, for appellees.


Montgomery, J.

On June 13, 1904, an affidavit in three counts was filed with a justice of the peace of Clay county, charging that on August 30, 1902, appellees (1) uttered, published and passed to the clerk of the Clay Circuit Court certain forged notes; (2) uttered, published and passed to Edward C. Schuetz, as administrator of the estate of William Baxter, Sr., deceased the same forged notes; and (3) that on August --, 1902, appellees forged and counterfeited said notes--to defraud the estate of William Baxter. A warrant was issued upon this affidavit, and appellees were arrested thereon and brought before the magistrate. The hearing was fixed for June 18, but on that date was, by agreement, postponed until August 2. Upon the hearing appellees were found probably guilty as charged, and required to enter into a recognizance for their appearance at the next term of the Clay Circuit Court. On the first day of the next term of said court the prosecuting attorney filed an information in three counts, based upon an affidavit of the same affiant, but taken before the clerk of the court on October 10, 1904, and containing the same charges as the original affidavit. Appellees thereupon filed their motion and affidavit for a change of venue, which was sustained, and the venue of the cause changed to the Putnam Circuit Court. In the latter court appellees' counsel submitted a motion to quash each count of the affidavit and information, which was sustained, and to this decision the State excepted, and prayed an appeal to this court. The assignment of errors requires us to determine the sufficiency of each count of the affidavit and information.

It is first insisted that the affidavit and information show that the prosecution of the offense charged is barred by the statute of limitations. The statute applying to this case reads as follows: "In all other cases, prosecution for an offense must be commenced within two years after its commission." § 1665 Burns 1901, § 1596 R. S. 1881.

In Bishop, Stat. Crimes (3d ed.), § 261, the learned author, after a discussion of the subject, says: "It is believed to be the general understanding in our tribunals that a criminal prosecution is begun when a complaint is made to a magistrate who issues his warrant of arrest." This conclusion is fully sustained by an exhaustive collection of decided cases. In the case of State v. Miller (1851), 30 Tenn. *505, in construing a statute similar to ours, it was said: "The circuit court, regarding the time when the indictment was found, to be the commencement of the prosecution, within the meaning of the act, quashed the indictment, from which judgment the attorney-general in behalf of the state, appealed in error to this court. We are of opinion, his honor, the circuit judge, erred in his construction of the statute. When it provides, that 'all prosecutions by representment or indictment for misdemeanors shall be commenced within twelve months,' we understand the legislature to refer to the commencement of the prosecution, and not to the finding of the indictment. The warrant, apprehension, and requiring bail for the appearance of the party at the circuit court, certainly constituted a 'prosecution' of the offender, and of this prosecution the warrant is the commencement. The indictment is the method by which the issue is made up, on which the party is to be tried. It is a prosecution, therefore, 'by indictment,' although the prosecution is commenced by warrant. The meaning is, that prosecutions for misdemeanors, the trial of which must be by presentment or indictment, shall be commenced in twelve months. The limitation refers to the commencement of the prosecution, and not to the finding of the indictment."

In the case of State v. Erving (1898), 19 Wash. 435, 53 P. 717, upon this question the court said: "But counsel is mistaken in the assumption that the prosecution of this case was not commenced within three years after the alleged commission of the crime, viz., July 11, 1894. From the record and the briefs of counsel it sufficiently appears that the defendant was arrested on June 22, 1897, and had a preliminary examination before a justice of the peace upon this very charge. That examination resulted in his being held for trial in the superior court, and was the commencement of the prosecution within the meaning of the statute."

In the case of State v. Howard (1868), 15 Rich. 274, 282, it was said: "The complaint made to a magistrate is a commencement of a prosecution sufficient to arrest the act of limitation." Citing State v. Fraser (1797), 2 Bay 96; State v. James (1799), 2 Bay 215; State v. May (1802), 1 Brev. 160.

In Ross v. State (1876), 55 Ala. 177, it was held that the court properly charged the jury that in case of petit larceny, if a warrant for the arrest of the defendant was issued and returned by a proper officer, within twelve months after the commission of the offense, then the statute of limitations of twelve months would be no bar. See, also, Molett v. State (1859), 33 Ala. 408, 412; Commonwealth v. Christian (1850), 7 Gratt. 631; Newell v. State (1816), 2 Conn. 38; Rex v. Willace (1797), 1 East P. C. 186. The courts of last resort in the states of Nebraska, California, Missouri and Florida have rendered decisions seemingly in conflict with the result reached in the cases above cited. The difference, however, is readily explained by an examination of the language of the statutes of limitation of those states.

A comparison of the affidavits filed before the justice of the peace and in the circuit court discloses some slight amendments. Such amendments are expressly authorized as a matter of right at any time before the defendant pleads, and upon being made the affidavit must be sworn to. § 1804 Burns 1901, § 1735 R. S. 1881. The making of such amendments in this case did not operate to terminate the prosecution and discharge ...

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