State v. Bilboa

BUDGE, C. J. — This cause was before this court upon a prior appeal, the opinion being reported in 33 Ida. 129, 190 Pae. 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 — 95 — 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 Ida. 272, 211 Pac. 60.) The court retained — 96 — jurisdiction over appellant at all times. The fact th'at 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 Ida. 183, 67 Pac. 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 (Okl. Or.), 202 Pac. 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. Plowever, 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, 164 Ky. 191, 176 S. W. 364, the indictment under which the defendant was tried was returned after the expiration of the statutory period therefor. On appeal the commonwealth proved a prior indictment found within the period of limitations which had been dismissed for insufficiency with leave to resubmit. The court held that there had been a continuous prosecution and that the operation of the statute as to the latter indictment had been suspended. In — 97 — the ease of Tully v. Commonwealth, 13 Bush (Ky.), 142, the indictment upon which the defendant was tried was returned after the period of limitations had expired, but on motion in arrest of judgment the prosecution was able to prove the return of a prior indictment within the period, which indictment had, however, been found fatally defective. The court decided that although the first indictment was defective, yet it was a commencement of prosecution which had since been continuous, and so the statute would not raise a bar to conviction. To the same effect, see People v. Buckner, 281 Ill. 340, 3 A. L. R. 1327 (note p. 1330), 117 N. E. 1023; Louisville & N. R. Co. v. Commonwealth, 4 Ky. Law Rep. 627; Louisville & N. R. Co. v. Commonwealth, 7 Ky. Law Rep. 836; State v. Williams, 151 N. C. 660, 65 S. E. 908; State v. Cox, 28 N. C. 440; Foster v. State, 38 Ala. 425; Weston v. State, 63 Ala 155; State ex rel. Graves v. Primm, 61 Mo. 166; Hickey v. State, 131 Tenn. 112, 174 S. W. 269; People v. Giesea, 63 Cal. 345; People v. Lundin, 120 Cal. 308, 52 Pac. 807; State v. Hansen, 10 Wash. 235, 38 Pac. 1023. In the case of Hickey v. State, supra, it was held that in the absence of an express statute the period between the return of an original defective indictment and a subsequent valid one should not be computed as part of the time limited by statute, within which prosecution could be brought. In the course of that opinion that court said: "The question now arises whether in this state, in the absence of any statute on the subject, the prosecution under this second indictment may be considered such a continuation of the original prosecution that the statute of limitation cannot apply. We think there is no doubt but that it was the same prosecution under both indictments. While the first indictment was defective and invalid because it did not contain the name of the person upon whom the assault was committed, yet it was a prosecution for the same offense as that embraced in the second indictment. ’ ’ While the authorities are not in harmony on this point we think the better reasoned cases support the position taken. — 98 — Counsel -cites and relies upon the case of State v. Disbrow, 130 Iowa, 19, 8 Ann. Cas. 190, 106 N. W. 263. This case is not in point, for the reason that the indictment was found to be void and not merely irregular or defective. (December 8, 1923.) When the legislature enacted C. S., sec. 8703, it was clearly not its intention to provide in all cases where an information was, upon demurrer, held to he defective, that pending the determination of the demurrer the statute of limitations was not suspended. The legislature has also made provision by statute for appeals in criminal cases. It would be both unreasonable and inconsistent for this court to say that a defendant might take advantage of such statutes by appeal in order to delay the prosecution and then invoke the aid of the statute of limitations as a bar to such prosecution. We think that the same principle was applied in the. case of People v. Giesea, supra, and affirmed in People v. Lundin, supra, and the same is adverse to appellant’s contention. To the same effect see note to In re Bergerow, 85 Am. St. 201. From what has been said it follows that the judgment should be affirmed and it is so ordered. Dunn and Wm. E. Lee, JJ., concur.