Commonwealth v. Elkins

Opinion or the court by JUDGE SETTLE Appirming. Bj the petition in this case which was filed in the Todd circuit court on the 10th day of November, 1902, the appellant, Commonwealth of Kentucky, -sought to recover of the — 305 — appellee the sum of §200 and the costs of the action as. a penalty under the statute for an alleged violation of the local option law,' which appellant is charged to have committed by selling spirituous liquor in the town of Trenton in May or June, 1901. The lower court sustained a demurrer to the petition upon the ground that the action was barred by limitation, and the only question presented for consideration by this appeal is whether or not the prosecution was barred by the statute of limitations. Section 1138 of the Kentucky Statutes of 1899 provides that : “Prosecutions by the Commonwealth for felony, unless otherwise especially provided, shall not be barred by lapse of time, or' any law of limitation. Prosecutions by the Commonwealth to recover a penalty for a violation of any penal statute or law, and an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penalty accrues, and not after, unless a different time is allowed by the law imposing the penalty.” It appears .from the averment of the petition that appellee was indicted on the 7th day of December, 1901, in the Todd circuit court, for the same offense for which the penalty is sought to be recovered against him in this case. The indictment was allowed to remain on the dockét without trial or other action until the 16th day of July, 1902, at which time an order was entered by the court dismissing it without a re-reference to the grand jury. It does not appear from the record that the appellee was ever before the court under the indictment. So, upon the face of the record, it is conclusively ■shown that more than a year elapsed between the commission of the offense by appellee and the date of the dismissal of the indictment, and the petition in this case was not filed — 306 — until about four months after the dismissal of the indictment, and about seventeen months after the alleged commission of the offense. It js contended, however, by counsel for appellant, that limitation did not run against this action to recover the statutory penalty as long as the indictment was pending, and that the filing of the petition was but a continuation of the prosecution begun by indictment; in other words, that the time during which the indictment was. pending should be excluded from the statutory period within which the prosecution or action was required to be commenced. No authority is cited in the brief of counsel in support of this contention, and we apprehend that none can be found. In Commonwealth v. T. J. Megibben Co., 101 Ky., 195, 19 R., 201, 40 S. W., 694, a second indictment was returned against the defendant for maintaining a nuisance, which showed on its face that the offense charged was committed more than a year before the finding of the indictment', but, as the indictment contained the averment that, the offense therein charged was the same charged in the former indictment returned in the same court, it was contended for the prosecution that the second indictment was not barred by limitation, but should be regarded as a continuation of the prosecution set on foot by the first indictment; but this court held that a prosecution under the second indictment would not be regarded as a continuation of the former prosecution, so as to avoid the statute of limitations, as it was. not alleged in the second indictment that the other indictment had been quashed and the case re-referred to the grand jury, or dismissed by the Commonwealth’s attorney and re-referred. Consequently, a demurrer was sustained to the last indictment because of the bar interposed by the statute of limitations. To the same effect was the decision of this court in Tully v. Commonwealth, 13 Bush, 153, and of the. — 307 — superior court in N. N. & M. V. R. Co. v. Commonwealth, 14 Ky. Law Rep., 197, and L. & N. R. R. Co. v. Commonwealth, 4 Ky. Law Rep., 627. In no case that we have been able to find has it been held in this State that, where a prosecution for an offense has been commenced by indictment, and the indictment dismissed without a re-reference to the grand jury, a second indictment for the same offense or action to recover the penalty denounced by statute against such an offense is to be regarded as a continuation of the former prosecution, even though such second indictment be found or action commenced within a year after the commission of the* offense ; and much less can it be so regarded if commenced more than a year from the date of its commission. If an indictment is quashed upon any of the grounds mentioned in section 158, Or. Code, section 159, makes it the duty of the judge of the circuit court to make an order that the case be submitted to another grand jury, and that the defendant, if in custody, shall be remanded to jail, or required to give bail for his appearance to answer a new indictment, if one be found, at that or the next term of the court. It is further provided by section 160 that, unless a new indictment be found before the final discharge of the next grand jury, the defendant shall be discharged from custody or bail, unless for good cause the court shall otherwise order. In the state of case thus provided for, if a new indictment be returned against the defendant, though beyond the period fixed by the statute of limitations for the prosecution of one guilty of the offense charged, the prosecution would not be barred by the statute, for the prosecution under the second indictment would be but a continuation of that commenced under the first indictment, the defendanr being all the time before the court by virtue of its order — 308 — made at the time of re-referring the case to the grand jury. Section 178, Or. Code, provides in substance that the dismissal of an indictment by the court on demurrer, or for objection to its form or substance taken during the trial, or for variance between the indictment and proof, shall not bar another prosecution for the same offense. Section 243 likewise provides that, when the indictment is dismissed by the attorney for the Commonwealth with the permission of the court, such dismissal shall not bar a future prosecution for the same offense. While not expressly authorized by sections 178 and 243, we know of no rule of law or practice that would forbid the re-reference to the grand jury of an indictment' dismissed as therein provided, or the holding of the defendant in jail or on bond to answer the, new indictment that might be found by the grand jury. However, where the dismissal of the indictment results as authorized by sections 178 and 243, and without a re-reference to the grand jury, that body may nevertheless return another indictment against the same defendant for the same offense at any time within the statutory period fixed for the prosecution of such an offense; but it is only where an order of re-reference is made upon the dismissal of the indictment that the return of a new indictment for the same offense by the grand jury will be treated as a continuation of the prosecution begun by the finding of the first indictment. It is not averred in the petition that a re-reference to the grand jury was had upon the dismissal of the indictment against appellee; consequently rfcs dismissal ended the prosecution against him, never to be revived, because the dismissal occurred more than a year after the commission of the offense charged. If the indictment had been dismissed within the year succeeding the commission of the offense, though without a re-reference of the case to the grand jury, another — 309 — prosecution for the same offense might have been instituted against appellee at any time before the expiration of the year thereafter, by indictment, or by civil action, as here attempted ; but this case must, in our view of the law, be regarded as an original action, without support from the indictment under which the prosecution against appellant was originated, and, it being shown on the face of the petition that it was not brought within a year next after the right to recover the penalty accrued, viz., of the date of the commission of the offense complained of, it follows that no error was committed by the lower court in 'sustaining the demurrer and dismissing the petition. ' Therefore the judgment is affirmed.