State v. . Hedden

Hoke, J. Under our statutes, C. S., 4173 and 4448 and 4449, the crime of abandonment is made a misdemeanor punishable as at common law with the additional power in case of conviction to make such “other orders as will best provide for the support of the deserted wife and children from the property or labor of the defendant.”- And under C. S., 4512, it is provided “That all misdemeanors and petit larcenies *805 where the value of the property does not exceed $5, except the offenses of perjury, forgery, malicious mischief, etc., shall be presented or found by the grand jury within two years after the commission of the same and not afterwards,” etc. There is no saving clause in this statute as to the effect of preliminary warrants before a justice of the peace or other committing magistrate, and in our opinion on the facts of this record the law must be construed and applied as written. There must be a presentment or indictment within two years from the time of the offense committed and not after-wards. In S. v. Morris, 104 N. C., 837, it was sought to avoid the effect and operation of the statute by evidence tending to show that the grand jury within the time had been investigating the matter, but the position was disapproved, and in reference to it the court held: . Where a bill for a misdemeanor was sent to a grand jury, which began an investigation, but “continued” the case for want of material witnesses, returning the bill with that endorsement into court without presentment, and it was so entered of record, and at a subsequent term of the court, but more than two years after the commission of the offense, the bill was sent to another grand jury, which found it true: Held, not to be a presentment within the time, and that the prosecution was barred. In the opinion in the Morris case, the Court cited S. v. Tomlinson, 25 N. C., 32, to the effect that even an indictment within the time will not uphold a trial and conviction on a second bill-found after the statutory period. The State’s testimony showing that the prosecution is barred by lapse of time, and there being no fact or facts in evidence permitting a contrary inference, defendant’s motion to dismiss the case as on judgment of nonsuit should have been allowed. S. v. Fulcher, 184 N. C., 663. This will be certified that the cause be dismissed. Reversed.