State v. Tupa

• Decision Date: 24 May 1935
• Docket Number: No. 30429.,30429.
• Citation: 260 N.W. 875,194 Minn. 488
• Parties: STATE v. TUPA.
• Court: Minnesota Supreme Court

260 N.W. 875

194 Minn. 488

STATE v. TUPA.

No. 30429.

Supreme Court of Minnesota.

May 24, 1935.

Appeal from District Court, McLeod County; C. M. Tifft, Judge.

Albert Tupa was convicted of the crime of being an accessory after the fact to a felony, and he appeals.

Judgment reversed, and defendant discharged.

Charles L. DeReu, of Marshall, for appellant.

J. P. O'Hara, Co. Atty., of Glencoe, and Wm. O. McNelly, of Hutchinson, for the State.

JULIUS J. OLSON, Justice.

The county attorney of McLeod county presented to the district court of that county an information charging the defendant with the crime of being an accessory after the fact to a felony in violation of 2 Mason's Minn. St. 1927, § 9918, which reads: "Every person not standing in the relation of husband or wife, parent or child, to the offender, who, after the commission of a felony, shall harbor, conceal, or aid such offender, with intent that he may avoid or escape from arrest, trial, conviction, or punishment, having knowledge or reasonable ground to believe that such offender has committed a felony or is liable to arrest, is an accessory to the felony."

The information charged that defendant, on October 13, 1925, having knowledge that one Johnson had killed one Miska, "did then and there harbor and aid the said John Johnson, by then and there assisting the said John Johnson in concealing and hiding the dead body of the said Frank Miska, with intent then and there had and entertained by him the said Albert Tupa, that he the said John Johnson, should avoid and escape from arrest, trial, conviction and punishment for said crime, against the form of the statute," etc. The information was made and filed November 26, 1934, and on that day defendant was arraigned. He demurred thereto upon the following grounds: (1) That the information did not state "facts necessary to constitute the offense of accessory to the crime of murder." (2) That the crime "was committed more than three years before the filing of the information and therefore is outlawed." (3) "That the facts stated in the information did not constitute a public offense." The court overruled the demurrer, and defendant duly excepted. Thereupon defendant entered a plea of guilty. Judgment of conviction was pronounced and defendant sentenced to an indeterminate term in the State Penitentiary, not exceeding five years. Defendant later moved for an order setting aside the judgment of conviction, also that the court reconsider its former order overruling the demurrer and that such demurrer be sustained; that if such motion be denied that the court grant a new trial. The court refused to grant any relief, and defendant has appealed from the judgment, also from the order denying his blended motion.

Presented here are the following issues: (1) Is the three-year statute of limitations, 2 Mason's Minn. St. 1927, § 10655, a bar to prosecution so that a demurrer will lie, or is the statute purely defensive, thereby casting upon defendant the burden of proof? (2) Did defendant by entering a plea of guilty waive the benefit of the statute?

Section 10655 reads: "Indictments for murder may be found at any time after the death of the person killed; in all other cases, indictments shall be found and filed in the proper court within three years after the commission of the offense; but the time during which the defendant shall not be an inhabitant of, or usually resident within, this state, shall not constitute any part of the said limitation of three years."

Section 10690 provides that the defendant may demur to an indictment when it appears from the face thereof: "5. That the indictment contains any matter which, if true, would constitute a legal justification or excuse of the offence charged, or other legal bar to the prosecution." (Italics ours.) If this statute is a "legal bar," necessarily the offense charged cannot now be punished.

1. The state in its brief clearly states its position in this way: "The question now presented is whether it is necessary to allege in an information which sets the date of the crime more than three years previous to the date of the filing of the information that the defendant was not an inhabitant of, or usually resident within, this state, a sufficient length of time to void the application of the statute of limitation or whether a demurrer to such information should be sustained if no such allegation is set forth. It is the State's contention that it is not necessary to set forth the exception in the indictment or information."

In support thereof, United States v. Cook, 17 Wall. 168 (84 U. S.) 21 L. Ed. 538, and other cases are cited. The basis for that decision and the many others cited and relied upon by the state is that the accused cannot by demurrer set up the statute of limitations as a defense but must either plead the statute or raise the issue by appropriate objection under the general issue. This is founded upon the logical theory that a "statute of limitations is never part of an offense, but always a matter of defense." Thompson v. State, 54 Miss. 740, 744. And in Biddinger v. Commissioner of Police, 245 U. S. 128, 129, 38 S. Ct. 41, 43, 62 L. Ed. 193, it is said that "the statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases" (citing United States v. Cook, supra). Upon this theory the California court, in Ex parte Blake, 155 Cal. 586, 102 P. 269, 18 Ann. Cas. 815, held that the statute of limitations could not furnish a ground for release of the accused by habeas corpus. To the same effect are 12 R. C. L. 1206; 29 C. J. 44; In re Johnson, 117 Kan. 136, 230 P. 67, 37 A. L. R. 1114.

We find some measure of support to the rule contended for by the state amongst our own decisions. See Trebby v. Simmons, 38 Minn. 508, 38 N. W. 693; Hardwick v. Ickler, 71 Minn. 25, 73 N. W. 519; Board of County Commissioners v. Miller, 101 Minn. 294, 112 N. W. 276; Thornton v. City of East Grand Forks, 106 Minn. 233, 118 N. W. 834. These cases and many others are carefully reviewed in the opinion of Ferrier v. McCabe, 129 Minn. 342, 152 N. W. 734. We think the following quotation from that opinion appropriate to the facts here for review (129 Minn. 344, 345, 152 N. W. 735):

"In this state suits at law and in equity are in the same tribunal, and the rules of pleading and practice applicable to each ought to be the same, as nearly as may be. No distinction should be made between the effect of demurrers as pleadings. And we hold that, where the complaint clearly shows that, since the cause of action stated therein accrued, the time allowed by the statute for bringing suit expired before the suit was brought, and no fact is set forth avoiding the operation of the statute, the complaint is demurrable. Swing v. Barnard-Cope Mfg. Co., 115 Minn. 47, 131 N. W. 855, and Fitger Brewing Co. v. American Bonding Co. of Baltimore, 115 Minn. 78, 131 N. W. 1067, seem to be decided upon the rule stated.

"It has been suggested that this rule requiring plaintiff to anticipate a defense which the defendant may waive, and which does not go to the merits of the action, is illogical. Dunnell's Pleading, § 729; Dunnell's Minn. Digest, § 5659. The rule relates to a matter of practice, and it is more important that it be certain and workable than that it be theoretically consistent with legal traditions. It is workable, for, if the statute is pleaded as a bar, the allegations need simply be that more than the statutory time expired between the accrual of the cause of action and the bringing of the suit. It then devolves on plaintiff to allege the exceptions, if the complaint on its face discloses the lapse of time. McMillan v. Cheeney, 30 Minn. 519, 16 N. W. 404; West v. Hennessey, 58 Minn. 133, 59 N. W. 984. If the defense of the statute be raised by demurrer, plaintiff has 20 days within which to amend the complaint as a matter of course, and, if it be a case where he is unable to state his cause of action without disclosing the bar of the statute, he may and should aver in the amended complaint the fact which tolled its running."

In Roe v. Widme, 191 Minn. 251, 253, 254, 254 N. W. 274, 276, it was held:

"Where the complaint on its face shows that the action is barred by the statute of limitations, the defendant has the option of presenting that defense by demurrer or by answer, for the defense that a complaint fails to state a cause of action is not waived by failure to demur. 2 Mason Minn. St. 1927, § 9252.

"The statute of limitations is a statute of repose. The courts have no power to extend or modify the period of limitation prescribed thereby. While there are early decisions applying a strict construction indicating that the defense of the statute is not looked upon with much favor, it is now more liberally construed, and the courts regard the statute with favor as a statute of repose. Brasie v. Minneapolis Brewing Co., 87 Minn. 456, 464, 92 N. W. 340, 67 L. R. A. 865, 94 Am. St. Rep. 709. The statute is a valid and legal defense, when applicable to the facts, and presents a meritorious defense whether raised by answer or demurrer."

Even "insanity arising subsequent to the accrual of a cause of action does not arrest the running of the statute." 4 Dunnell, Minn. Dig. (2d Ed.) § 5614.

It commences to run against a cause of action from the time the cause accrues, i. e., from the time an action thereon could be commenced. Id., § 5602. Statutes of limitation are applicable to legal proceedings generally. The right sought to be enforced, not the form of procedure, is the test. Id., § 5597.

If this case involved civil liability only, there can be no doubt that under our decisions the demurrer would have to be sustained. This question as applied to criminal proceedings does not seem to have been directly determined by this court. Counsel inform us that this is so and our own search has brought to light no case decisive of the issue. The...