4 county to another, was properly docketed, but the clerk failed to place the number on the indictment and other papers in the cause,3 and failed to place the file mark on such papers, the court may properly allow the same to be done. Such defects may also be corrected by the court in which the cause originated, or by its clerk, and the court to which the change is ordered may remit the record for that purpose,' and direct the clerk who originally transmitted the record to supply the deficiencies. 12 ly.15 The court may at any time during the term order the indictment filed,16 or the transcript of the record transmitted spread upon its records.17 If the court to which the cause has been transferred has by statute complete jurisdiction of the crime it may allow the information, or the indictment to a limited extent 18 to be amended,19 or a new complaint to be filed correcting the old one in any particular, even to allowing a change therein as to the offense charged against defendant;20 but generally the new court has no jurisdiction to vacate or to amend the records of the court from which the cause has been removed,21 although it may on application either by certiorari or by other appropriate remedy compel the removal of papers to it, or obtain fuller transcripts of the records of the court from which the case came.23 22 [§ 335] h. Jurisdiction and Proceedings after Change (1) In General. Upon a change of venue the county from which the case is transferred loses all jurisdiction to try accused upon the indictment transferred at the time of change, or upon any other indictment charging the same offense,1 10 although the court granting the change may, where application is made at the same term and before the papers have been transferred, set aside its own order changing the venue,11 on notice to or with the consent of accused; 13 and it may release accused on bail.14 It is usually provided that the court to which the change is made shall have the same jurisdiction and proceed in the same manner as though the prosecution had been begun in it original116 SW 1096; State v. Rodman, 173 | where the clerk has omitted to state Mo. 681, 73 SW 605; State v. Buck, it thereon, be indorsed by order of 120 Mo. 479, 25 SW 573; State v. the court after a continuance. Day Dusenberry, 112 Mo. 277, 20 SW 461; v. State, 13 Mo. 422. Laporte v. State, 6 Mo. 208. N. C.-State v. Scott, 19 N. C. 35; State v. Reid, 18 N. C. 377, 28 AmD 572. 414. Tenn.-Logston v. State, 3 Heisk. Tex.-Biggerstaff v. State, 59 Tex. Cr. 575, 129 SW 840; Davis v. State, 54 Tex. Cr. 236, 114 SW 366; Delaney v. State, 48 Tex. Cr. 594, 90 SW 642; Brown v. State, 6 Tex. A. 286. Wis.-State v. Parish, 43 Wis. 395. [a] Where two contradictory copies of a record are certified, the court may reconcile them by an inspection of the original record, and for this purpose, on motion in arrest of judgment, the court may grant a certiorari for the original or a more perfect transcript of it, and may then proceed to pronounce judgment after inspecting it. State v. Scott, 19 N. C. 35; State v. Collins, 14 N. C. 117. See also State v. Reid, 18 N. C. 377, 28 AmD 572. [b] Defects supplied by prosecuting attorney.-Where no transcript, or an insufficient one, has been filed in the court to which the change was made, and for that reason accused has moved to quash the proceedings, the court may permit the prosecuting attorney to supply the defects. Adell v. State, 34 Ind. 543. [c] Writ of diminution.—(1) On its appearing that the indictment transmitted is defective as certified, it is the duty of the state's attorney to allege a diminution of the record and thus to obtain a correct copy. Smith v. Peo., 36 Ill. 290. (2) In Maryland it is held that the court to which a cause is removed has no power to order a writ of diminution to correct the transcript sent to it. Price v. State, 8 Gill (Md.) 295. (3) A writ of certiorari which recites the diminution and commands a certification of a full and perfect transcript is the usual method of perfecting the transcript. State v. Reid, 18 N. C. 377, 28 AmD 572. 3. Davis v. State, 54 Tex. Cr. 236, 114 SW 366. 4. State v. Daniels, 49 La. Ann. 954, 22 S 415; Davis v. State, 54 Tex. Cr. 236, 114 SW 366; Rice v. State, 54 Tex. Cr. 149, 112 SW 299. [a] Addition of file mark.-The time of filing the transcript may, Void or irregular change. Where a change of venue is granted, and the proceedings are so irregular as to be wholly void, then the court to which the case is taken does not acquire jurisdiction.24 But the fact that one accused of crime is irregularly brought into the court to which the trial has been changed will not deprive that court of jurisdiction to proceed therewith, nor furnish any reason for arvenue is granted and accused is ordered to appear at the court to which the transfer is made, it is the duty of his bail there to present him to answer the charge. State v. Brown, 16 Iowa 314. 5. State v. Swepson, 81 N. C. 571; State v. Reid, 18 N. C. 377, 28 AmD 572. 6. State v. Haws, 98 Mo. 188, 11 SW 574, 12 SW 126; State v. Anderson, 92 N. C. 732. [a] Supplying omitted words. On the trial of a case in the court to which it has been removed, the clerk of the court from which the change was made, then being present may be permitted to amend the certificate attached by him to the transcript and to interline words omitted by inadvertence. State v. Gibson, 29 Iowa 295. 7. State v. Haws, 98 Mo. 188, 11 SW 574, 12. SW 126; Laporte v. State, 6 Mo. 208. 8. Day v. State, 13 Mo. 422; Brown v. State, 6 Tex. A. 286. 9. Johnston v. State, 118 Ga. 310, 45 SE 381, 46 SE 488; State v. Reid, 18 N. C. 377, 28 AmD 572; Keefe v. Carbon County Dist. Ct., 16 Wyo. 381, 94 P 459. And see supra § 330. 10. Johnston V. State, 118 Ga. 310, 45 SE 381, 46 SE 488; Smith v. Com., 95 Ky. 322, 25 SW 106, 15 KyL 637; Keefe v. Carbon County Dist. Ct., 16 Wyo. 381, 94 P 459. [a] Contra in Missouri under Rev. St. (1899) § 2522, providing that, if there are two indictments against the same defendant for the same offense, the first shall be deemed to be suspended by the second. State v. Goddard, 162 Mo. 198, 62 SW 697; State v. Billings, 140 Mo. 193, 41 SW 778. 11. Peo. V. Zane, 105 Ill. 662; State v. Gray, 113 La. 671, 37 S 597; State v. Webb, 74 Mo. 333; Com. v. Carter, 2 Va. Cas. (4 Va.) 131. See also supra §329. 12. State v. Bragg, 63 Mo. A. 22. 13. Bowles V. State, 5 Sneed (Tenn.) 360. 14. State v. Schaffer, 36 Mo. A. 589. 15. Ind.-Beauchamp v. State, 6 Blackf. 299. Md.-Price v. State, 8 Gill 295. 230. N. D.-State v. Winbauer, 26 N. D. 43, 143 NW 387. Wash.-State v. Grimes, 80 Wash. 14, 141 P 184. [a] Duty of bail.-If a change of [b] New indictment.-(1) Under Gen. St. art 4 c 12 § 7, providing that the court to which the venue is changed shall have the same jurisdiction to dispose of the case as the court in which it originated, and that if the indictment is quashed or a nolle prosequi is entered a new indictment may be found by the grand jury of the county to which the change is made, by applying for and obtaining a change accused waives his right to object to a new indictment. Parker v. Com., 12 Bush (Ky.) 191. (2) But under Code Cr. Proc. § 230, providing that the court shall transfer the cause to the proper county, where it appears during the trial that the offense was committed out of the jurisdiction of the court but within the jurisdiction of some other court of the state, it is improper for the court to which the cause is transferred to try accused on the original indictment, where such indictment charges the illegal sale of intoxicating liquors in the county from which the cause was transferred. Gearhart v. Com., 129 Ky. 458, 112 SW 572. 16. Ammons v. State, 9 Fla. 530. 17. Major V. State, 2 Sneed (Tenn.) 11; Adams v. State, 1 Swan (Tenn.) 466. 18. See Indictments and Informations [22 Cyc 439]. 19. State v. Woods, 24 N. D. 156. 139 NW 321; State v. Lyts, 25 Wash. 347, 65 P 530. [a] In Missouri a contrary rule obtains. State v. Bartlett, 170 Mo. 658, 71 SW 148, 59 LRA 756 (under a provision of the constitution). 20. State v. Grimes, 80 Wash. 14, 141 P 184. 21. State v. Start, 62 Kan. 111, 61 P 394. 22. Harrall v. State, 26 Ala. 52; State v. Scott, 19 N. C. 35; State v. Collins, 14 N. C. 117. And see supra § 334. 23. Goodhue v. Peo., 94 Ill. 37: Noonan v. State, 55 Wis. 258, 12 NW 379. 24. Ala.-Goodloe State, 60 Ala. 93. Kan.-State v. Potter, 16 Kan. 80. N. C.-State v. Reid, 18 N. C. 377, V. resting the judgment.25 Loss of jurisdiction in the new court does not oceur by reason of defendant withdrawing his application after it has been granted;26 but it is otherwise where the district attorney enters a nolle prosequi.27 [§ 336] (2) Arraignment. Where the prisoner has been arraigned and has pleaded to the indictment before the change of venue, a second arraignment and a plea in the court to which the cause is removed are not necessary, 28 and the trial should be had upon the original indictment,20 unless by statute the court is authorized to use a copy thereof.30 But a new arraignment is not reversible error.31 [§ 337] (3) Remand. It is competent for the court to which a change of venue has been granted to change the venue back, upon a proper application and an agreement of counsel, to the same court that granted it;32 but when a case is removed from one county to another, under the statute, so as to be regularly constituted in the superior court of the latter county, it cannot be remanded by the court of its own motion to the county from which it was removed,33 unless the change was unauthorized.34 Where the court to which venue is changed properly retransfers the case to the court from which it 28 AmD 572. Okl.-Dodd v. State, 5 Okl. Cr. 513, 115 P 632. Tenn.-State v. Denton, 6 Coldw. 539. [a] All orders by a trial judge duly qualified and presiding at a regular term in a criminal case unlawfully transferred by change of venue, except to return the files to the court where they belong, are void. Dodd v. State, 5 Okl. Cr. 513, 115 P 632. 25. State v. Compton, 77 Wis. 460, 46 NW 535. [a] Inaccuracies in certifying abstract. The court to which a change of venue has been granted is not compelled to dismiss the case because of inaccuracies of the clerk in certifying the abstract, but may permit correction thereof. State Bell, 136 Mo. 120, 37 SW 823. And see supra § 334. V. 35 and has came, the latter acquires jurisdiction,3 power to compel the clerk of the former court to return the papers and documents in the case.36 Irregularities in remanding the cause may be waived in the court in which the cause originated, by appearance and submission to the jurisdiction.37 [§ 338] i. Objections and Exceptions 38-(1) In General. All objections and exceptions to the sufficiency of the proceedings, or to the propriety of the change on which the order granting a change of venue is based, must be made before the court granting it.39 The order changing the venue cannot be attacked collaterally in the court where the trial is had.40 [§ 339] (2) Waiver and Estoppel. Where the proceedings in the court granting a change of venue are so irregular as to be wholly void, the court to which the case is taken acquires no jurisdiction, and the question may be raised at any time in the course of proceedings in that court, or for the first time on appeal. But where the proceedings of the court granting the change of venue are not so irregular as to be wholly void, but are merely irregular or voidable, the question as to the regularity of such proceedings must be raised at the earliest convenient opportunity or it will be waived.12 Thus objections to the regularity of the proceedings by which the (1889) § 4167, defendant may be arraigned and called upon to plead in the court to which the venue has been changed. State v. Good, 132 Mo. 114, 33 SW 790; State v. Renfrow, 111 Mo. 589, 20 SW 299. [b] Where the venue is changed on the application of the prisoner before arraignment, he is not prejudiced if he has the benefit of arraignment and a plea of not guilty in the court to which the cause is transferred. Hudley v. State, 36 Ark. 237. 32. Ala.-Paris v. State, 36 Ala. 232. But see Ex p. Dennis, 48 Ala. 304, 307 (where the court said: "Section 4206 of the Revised Code prescribes the causes for which a case of this sort may be transferred to another county, and directs the manner in which it shall be done. Under it this case has been removed from the county where it originated. Section 4207 declares that the trial [b] An insufficient certificate to can be removed but once. We have the clerk's transcript required on a no authority to hold, that the agreechange of venue in a murder prose- ment of counsel to that effect is a cution will not affect the jurisdic-ground for the change of venue in a tion of the court to which the cause is transferred. State v. Rodman, 173 Mo. 681, 73 SW 605. 26. State v. Hayes, 88 Mo. 344. 27. State v. Patterson, 73 Mo. 695. 28. Davis v. State, 39 Md. 355; Price v. State, 8 Gill (Md.) 295; Com, v. Pistorius, 12 Phila. (Pa.) 550: Sims v. State, 36 Tex. Cr. 154, 36 SW 256; Vance v. Com., 2 Va. Cas. (4 Va.) 162. 29. Ammons v. State, 9 Fla. 530; Leslie v. State, 83 Ind. 180; Hurt v. State, 26 Ind. 106. 30. Pleasant v. State, 15 Ark. 624; Ammons v. State, 9 Fla. 530; Hurt v. State, 26 Ind. 106; Williamson V. State, 64 Miss. 229, 1 S 171. And see State v. Kindig, 55 Kan. 113, 39 P 1028; Browning v. State, 33 Miss. 47; Browning v. State, 30 Miss. 656. [a] Sufficiency of service of copy of the indictment.-Under Code § 3615, which provides that, when a trial is removed accused "must be tried on the copy of the indictment," a certified copy becomes an original in the court to which the trial is removed, in so far as concerns service of the indictment on accused. Brister v. State, 26 Ala. 107. 31. Gardner V. Peo., 4 Ill. 83; Myers v. State, 37 Tex. Cr. 208, 39 SW 111. [a] In Missouri, under Rev. St. criminal case"). Ind.-Clark v. State, 4 Ind. 268. Ky. Hourigan V. Com., 94 Ky. 520, 23 SW 355, 12 KyL 265; Lightfoot v. Com., 80 Ky. 516. N. C.-State v. Ledford, 133 N. C. 714, 45 SE 944. Tex.-Berg v. State, 64 Tex. Cr. 612, 142 SW 884 (effect of remand). 33. State V. Ledford, 133 N. C. 714, 45 SE 944; State v. Swepson, 81 N. C. 571. 34. Moore v. State, 49 Tex. Cr. 499, 96 SW 321. [a] Where one of several codefendants obtains a change of venue without the consent of the others, (1) the court to which the case is transferred obtains no jurisdiction over them. Hunter v. Peo., 2 I11. 453; State v. Wetherford, 25 Mo. 439. (2) Or if by statute it has jurisdiction, they should be remanded for trial in the county where originally indicted. State v. Wetherford, supra. 35. Moore v. State, 49 Tex. Cr. 499, 96 SW 321. 36. Berg v. State, 63 Tex. Cr. 612, 142 SW 884. 37. Paris v. State, 36 Ala. 232; Tholke v. State, 50 Ind. 355; Clark v. State, 4 Ind. 268; Porter v. State, 5 Mo. 538; State v. Ledford, 133 N. C. 714, 45 SE 944. 38. For purpose of review see in Ark.-Martin v. State, 46 Ark. 38; Brown v. State, 13 Ark. 96. Ga.-Wheeler v. State, 42 Ga. 306. Ill.-Peo. v. Zane, 105 Ill. 662. Ky.-Smith v. Com., 67 SW 32, 23 KyL 2271; Yontz v. Com., 66 SW 383, 23 KyL 1868. La.-State v. Harris, 107 La. 325, 31 S 782. Mo.-State v. Taylor, 132 Mo. 282, 33 SW 1145; State v. Gamble, 119 Mo. 427, 24 SW 1030; State v. Anderson, 96 Mo. 241, 9 SW 636; State v. Mann, 83 Mo. 589; State v. Ware, 69 Mo. 332; State v. Knight, 61 Mo. 373. N. D.-State v. Kent, 5 N. D. 516, 67 NW 1052, 35 LRA 518. Tex. Goode v. State, 57 Tex. Cr. 220, 123 SW 597; Gibson v. State, 53 Tex. Cr. 349, 110 SW 41; Moore v. State, 49 Tex. Cr. 499, 96 SW 321; Ex p. Cox, 12 Tex. A. 665; Krebs v. State, 8 Tex. A. 1; Rothschild v. State, 7 Tex. A. 719; Brown v. State, 6 Tex. A. 286; Preston v. State, 4 Tex. A. 186; Harrison v. State, 3 Tex. A. 558. Va.-Vance v. Com., 2 Va. Cas. (4 Va.) 162. 41. Fawcett v. State, 71 Ind. 590; State v. Potter, 16 Kan. 80. [a] That an indictment is void, because the minutes of the court do not show that the grand jury were sworn, may be raised for the first time by a motion to quash in the court to which a change of venue has been had. Hardy v. State, 96 Miss. 844, 51 S 460. 42. Ala. Bramlett V. State, 31 Ala. 376; State v. Matthews, 9 Port. 370. Ark.-Lee v. State, 73 Ark. 148, 83 SW 916. Cal.-Peo. v. Suesser, 142 Cal. 354, 75 P 1093. Fla. Ammons v. State, 9 Fla. 530. Ill.-Langford v. Peo., 134 Ill. 444, 25 NE 1009; Tucker v. Peo., 122 Ill. 583, 13 NE 809; Peo. v. Zane, 105 Ill. 662; Goodhue v. Peo., 94 Ill. 37: Brennan v. Peo., 15 I. 511; Peo. v. Scates, 4 Ill. 351; Gardner v. Peo., 4 Ill. 83. Ind.-Burrell v. State, 129 Ind. 290, 28 NE 699; App v. State, 90 Ind. 73. Ind. T.-Gardner v. U. S., 5 Ind. T. 150, 82 SW 704. Iowa. Sharp v. State, 2 Iowa 454. cause reaches the court designated by the order may be waived by appearance, ,43 by moving for a continuance, by proceeding to trial without questioning the validity of the transfer,45 or in any other manner which will signify submission to the jurisdiction. Persons procuring or consenting to a change cannot object to the jurisdiction of the new court.46 Right to trial in county where offense committed. Where defendant applies to the court for a change VIII. LIMITATION [§ 340] A. In General. Unless a period of prescription or limitation is fixed by law for a particular offense or crime, the prosecution for such offense or crime is not barred by lapse of time.50 In most jurisdictions, however, there are statutes limiting the time within which prosecutions for crime may be commenced. Such statutes are to be given a reasonably strict construction in favor of accused and against the prosecution.51 By the weight of authority, how of venue from one county to another in the same judicial district, or from one judicial district to another, he waives the constitutional right to be tried in the county or district where the offense is alleged to have been committed;47 and this is true, although the venue is changed to the wrong county.48 When change refused. Accused waives any objections to the denial of his motion for a change of venue where he is afterward given an opportunity to renew it and fails so to do.49 OF PROSECUTIONS ever, they do not apply to crimes previously committed, unless clearly retrospective in their terms.52 A statute extending the time for the prosecution of certain crimes, although it may not affect cases in which the period of limitation has expired, extends those limitations which have not expired at the date of its passage." Where a complete defense has arisen under a statute limiting the time for instituting a criminal prosecution, it cannot be taken Mo.-State v. Hoffmann, 75 Mo. A. Kan.-State v. Kindig, 55 Kan. 113, | 516. 39 P 1028; State v. Potter, 16 Kan. 80. Ky.-Yontz v. Com., 66 SW 383, 23 KyL 1868; Lightfoot v. Com., 80 Ky. 516, 4 KyL 463. V. Mo.-State v. Gamble, 119 Mo. 427, 24 SW 1030; State v. Dusenberry, 112 Mo. 277, 20 SW 461; State Keele, 105 Mo. 38, 16 SW 509; Laporte v. State, 6 Mo. 208. N. C.-State v. Ledford, 133 N. C. 714, 45 SE 944 (by plea in abatement). Okl. -Martin v. Terr., 14 Okl. 598, 78 P 88. Tenn.-Logston v. State, 3 Heisk. 414; Major v. State, 2 Sneed 11; Ellick v. State, 1 Swan 325. Tex.-Kemper Cr. 138 SW 1025. Wis. State v. Merrick, 101 Wis. 162, 77 NW 719. one V. State, 63 Tex. 380. Mont. In re Graye, 36 Mont. 394, 93 P 266. N. C.-State v. Pace, 159 N. C. 462, 74 SE 1018. Tenn.-Adams 466. V. State, 1 Swan 46. State v. McLendon, 1 Stew. (Ala.) 195; Peo, v. Zane, 105 Ill. 662; Taylor v. Com., 172 Ky. 136, 188 SW 1087. 47. Ark.-Kent v. State, 64 Ark. 247, 41 SW 849. Ill.-Weyrich v. Peo., 89 Ill. 90; Perteet v. Peo., 70 Ill. 171. Kan.-State v. Knapp, 40 Kan. 148, 19 P 728; State v. Potter, 16 Kan. 80. Ky.-Parker v. Com., 12 Bush. 191. Nebr.-Kennison v. State, 83 Nebr. 391, 119 NW 768; State v. Crinklaw, 40 Nebr. 759, 59 NW 370. N. H.-State v. Albee, 61 N. H. 423, 60 AmR 325. 143 Wis. [a] Disqualification of judge. Where a change of venue is granted from Wis.-Oborn v. State, to another judge of the same court, but the former is law- 249, 126 NW 737, 31 LRANS 966. fully presiding as judge when the [a] Consent to retransfer. — A jury return their verdict, it is the criminal case was transferred from duty of accused to object to the one district to another, and was later judge's receiving the verdict; and by consent of all the parties transwhere he does not do so, but appar- ferred back to the original court. ently acquiesces in such action and Defendant then objected to the jurisdiction of the original court, and parol testimony of the order showing requests him to enter a motion for a new trial, he cannot take advantage of the judge's disqualification to act. Sampson v. Peo., 188 Ill. 592, 59 NE 427. [b] Waiver by state. The state, by treating an application for a change of venue on the ground of prejudice as sufficient to raise the issue of fact, and by introducing evidence thereon, waived the defect that the application failed to allege, as required by statute, that the facts on which the application was based first came to the knowledge of accused since the last preceding continuance of the case. State v. Sharp, 233 Mo. 269, 135 SW 488. 43. Ex p. Lou Ah Sun, (Cal.) 7 P 305; Burrell v. State, 129 Ind. 290, 28 NE 699; Bennett v. State, 3 Ind. 167; Wolfforth v. State, 31 Tex. Cr. 387, 20 SW 741; State v. Wertzel, 84 Wis. 344, 54 NW 579. 44. Burrell v. State, 129 Ind. 290, 28 NE 699; Mannix v. State, 115 Ind. 245, 17 NE 565. 45. Colo.-Braisted V. Peo., 38 Colo. 49, 54, 88 P 150. Fla.-Ammons v. State, 9 Fla. 530. Ill-Langford v. Peo., 134 Ill. 444, 25 NE 1009; Tucker v. Peo., 122 Ill. 583, 13 NE 809; Perteet v. Peo., 70 Ill. 171; Gardner v. Peo., 4 Ill. 83. Iowa.-State v. McEvoy, 68 Iowa the retransfer was offered and admitted without objection. It was held that, while the transcript might be the best evidence, parol evidence having been admitted without objection, the court properly overruled defendant's plea to the jurisdiction, it appearing that he had consented to the order of retransfer and had executed a new bond in the original court. Berg v. State, 64 Tex. Cr. 612, 142 SW 884. 48. State v. Gamble, 119 Mo. 427. 24 SW 1030; Kennison v. State, 83 Nebr. 391, 119 NW 768. 49. Peo. v. Staples, 149 Cal. 405, 86 P 886; Peo. v. Fredericks, 106 Cal. 554, 39 P 944; Peo. v. Goldenson, 76 Cal. 328, 19 P 161; Peo. v. Plummer, 9 Cal. 298; Irvin v. State, 19 Fla. 872. [a] Where an application for a change of venue was never passed on, and it appeared that the application was never called to the attention of the court, accused waived his application by going to trial without saving any exception or without objecting to proceeding with the trial. State v. Leach, (Mo.) 193 SW 916. 50. Bailey v. Com., 130 Ky. 301, 113 SW 140; State v. Reeves, 97 Mo. 668, 10 SW 841, 10 AmSR 349; Com. v. Wilcox, 56 Pa. Super. 244; U. S. Ky.-Lightfoot V. Com., 80 Ky. v. Serapio, 23 Philippine 584. 355. 53 [a] "It is one of the inherent rights of a state to apprehend and bring to trial those accused of a violation of its public criminal law. This right may be exercised without limitation of time, save in so far as the state by its own statute has seen fit to waive or limit its otherwise undeniable right." Com. v. Wilcox, 36 Pa. Super. 244, 250. [b] In Georgia (1) there is no limitation as to murder. Sikes v. State, (A.) 92 SE 553; Troup V. State, 17 Ga. A. 387, 87 SE 157. (2) And there is no general law providing when prosecutions in police courts for offenses against municipalities shall be barred. Battle v. Marietta, 118 Ga. 242, 44 SE 994. [c] In Illinois limitations do not run against the crime of forgery. Peo. v. Douhgerty, 266 Ill. 420, 107 NE 695. [d] In New York (1) under Code Cr. Proc. § 141, there is no limitation of the time within which a prosecution for murder must be commenced. Peo. v. Di Pasquale, 161 App. Div. 196, 146 NYS 523. (2) An accessary before the fact of the crime of murder is guilty of murder, and the prosecution against him is subject to no limitation where there is none provided for prosecutions for murder. Peo. v. Mather, 4 Wend. 229, 21 AmD 122. [e] In North Carolina all offenses penitentiary are felonies, and as to punishable by imprisonment in the them the statute is no bar. Within this class comes a conspiracy to cheat and defraud. State v. Mallett, 125 N. C. 718, 34 SE 651. [f] In the Philippines no limitation has been fixed in the case of a prosecution for libel. U. S. v. Serapio, 23 Philippine 584. murder § 1188 provided that "prosecutions [g] In Washington 2 Hill Code for and arson, where death ensues, may be commenced at any period after the commission of the offense; for offenses the punishment of which may be imprisonment three in years after their commission;" and it the penitentiary, within has been held that one accused of murder may be prosecuted for the crime any time after its commission. State v. Erving, 19 Wash. 435, 53 P 717. 51. State v. Snyder, 182 Mo. 462, 82 SW 12; State v. Locke, 73 W. Va. 713, 81 SE 401, 403 [cit Cycl; State v. Heller, 76 Wis. 517, 45 NW 307. 52. Peo. v. Lord, 12 Hun (N. Y.) | 282; Martin v. State, 24 Tex. 61. Contra Com. v. Hutchinson, 2 Pars. Eq. Cas. (Pa.) 453, 1 Phila. 77. 53. Com. v. Duffy, 96 Pa. 506, 42 AmR 554; State v. Sneed. 25 Tex. away by the subsequent repeal of such statute.54 54. Thompson v. State, 54 Miss. 740. 55. See statutory provisions; and: U. S.-U. S. v. Norton, 91 U, S. 566, 23 L. ed. 454; U. S. v. Slacum, 27 F. Cas. No. 16,311, 1 Cranch C. C. 485. Ala.-Birmingham v. Brown, 195 Ala. 79, 70 S 718; Lane v. State, 14 Ala. A. 40, 70 S 982; Gleason v. State, 6 Ala. A. 49, 60 S 518; Parker v. State, 2 Ala. A. 127, 56 S 872. Ark-Stelle v. State, 77 Ark. 441, 92 SW 530; Fitzpatrick v. State, 37 Ark. 373. Conn.-State v. Enos, Kirby, 21. Fla. Warrace v. State, 27 Fla. 362, 8 S 748; Frese v. State, 23 Fla. 267, 2 S 1. Ga.-Hammock v. State, 116 Ga. 595, 43 SE 47; Coker v. State, 115 Ga. 210, 41 SE 684; Patton v. State, 80 Ga. 714, 6 SE 273; Webb v. State, (A.) 80 SE 14; Flint v. State, 12 Ga. A. 169, 76 SE 1032. Ind.-Jones v. State, 14 Ind. 346; Wallace v. State, 5 Ind. 555. Kan.-State v. Pfefferle, 36 Kan. 90, 12 P 406. Ky-Collins v. Čom., 149 Ky. 397, 149 SW 817; Com. v. Edwards, 9 Dana 447; Com. v. Feland, 13 KyL 142; Montfort v. Com., 13 Ky. 136; Com. v. Brown, 4 KyL 622; Harris v. Com., 1 Ky. Op. 215. La-State v. Pierre, 49 La. Ann. 1159, 22 S 373; State v. King, 29 La. Ann. 704; State v. Walters, 16 La. Ann. 400; State v. Markham, 15 La. Ann. 498; State v. Jumel, 13 La. Ann. 399. Me.-State v. Cofren, 48 Me. 364. Md.-Schaumloeffel v. State, 102 Md. 470, 62 A 803; State v. Popp, 45 Md. 432. Minn.-State v. Dlugi, 123 Minn. 392, 143 NW 971 (adultery). Mo.-State v. Stoker, 190 SW 294; State v. Williams, 237 Mo. 178, 140 SW 894; State v. Snyder, 182 Mo. 462, 82 SW 12. Nebr.-State v. Leekins, 81 Nebr. 280, 115 NW 1080; McArthur v. State, 60 Nebr. 390, 83 NW 196 (sale of intoxicating liquors). N. Y.-Peo. v. Di Pasquale, 161 App. Div. 196, 146 NYS 523; Peo. v. Lord, 12 Hun 282; Peo. v. Lindenborn, 23 Misc. 426, 52 NYS 101, 13 N. Y. Cr. 195. N. C-State v. Frisbee, 142 N. C. 671, 55 SE 722; State v. Crowell, 116 N. C. 1052, 21 SE 502. Pa.-Culp v. Com., 109 Pa. 363; Com. v. McHale, 97 Pa. 397, 39 AmR 808; Com. v. Scheiring, 61 Pa. Super. 261; Com. v. Swab, 59 Pa. Super. 485; Com. v. Keuhne, 42 Pa. Super. 361; Com. v. Egler, 24 Pa. Dist. 939; Com. V. Pearce, 23 Pa. Dist. 1048; Com. v. Deckard, 7 Pa. Dist. 400; Com. v. Smith, 19 Pa. Co. 397; Com. v. Hutchinson, 2 Pars. Eq. Cas. 453, 1 Phila. 77; Com. v. Dengler, 2 LancLRev 314; Com. v. Bunn, 1 Leg. Op. 114. R. L-State v. Hazard, 8 R. I. 273. S. C.-State v. Chitty, 17 S. C. L. 379. S. D.-State v. Pickering, 29 S. D. 207, 136 NW 105, 40 LRANS 144. Tenn.-Hickey v. State, 131 Tenn. 112, 174 SW 269; State v. Sharp, 5 Yerg. 245. is governed wholly by the statutory provisions in the several jurisdictions, which provisions vary greatly. A limitation applicable to a prosecution for a fine or forfeiture does not apply to a crime punishable by imprisonment;50 but a fine is barred by a lapse of this period if it is imposed as exclusive punishment or in conjunction with imprison SW 111; Ex p. Hoard, 63 Tex. Cr. 519, 140 SW 449; Matthews v. State, 57 Tex. Cr. 328, 122 SW 544; McKay v. State, 49 Tex. Cr. 118, 90 SW 653 (receiving stolen goods); Stanford v. State, 49 Tex. Cr. 100, 90 SW 167 (prosecution for selling mortgaged property); Monford v. State, 35 Tex. Cr. 237, 33 SW 351; Moore v. State, 20 Tex. A. 275. Va.-Quillin v. Com., 105 Va. 874, 54 SE 333, 8 AnnCas 818. Wash.-State v. Erving, 19 Wash. 435, 53 P 717. W. Va.-State v. Locke, 73 W. Va. 713, 81 SE 401; State v. Cool, 66 W. Va. 86, 66 SE 740. Wis.-State v. Heller, 76 Wis. 517, 45 NW 307 (construing Rev. St. §§ 4629-4631). [a] Assault to murder.-It has been held that a statute providing that a prosecution for "any assault, battery or affray," etc., must be brought within twelve months, does not apply to an assault with intent to murder, as the intent to murder is the gist of the latter offense and is as distinct from an assault or battery as is murder from manslaughter. State v. Starp, 5 Yerg. (Tenn.)_245. [b] Longer period for assault to rape than for rape.-It is provided by Code Cr. Proc. art 197, that the crime of rape may be presented for prosecution within one year, and not afterward. The codes fix no special limitation with regard to prosecutions for attempts or assaults with intent to commit rape. The general provision, however, announced in Code. Cr. Proc. art 199, is to the effect that "an indictment for all other felonies may be presented within three years from the commission of the offense, and not afterward." It was objected on a prosecution for assault with intent to rape that the trial court erred in charging the three years' limitation, because assault to rape being one of the degrees included in the crime of rape, under Code Cr. Proc. art 714, the limitation applicable to rape applied. It was held, however, that the objection was not well taken; that the one year's limitation, being restricted to rape, cannot control the minor degrees of that offense, because the particular enumeration excludes offenses not enumerated; and that there being no special limitation fixed for the minor degrees, they fall within the purview of the general statute of three years. Moore v. State, 20 Tex. A. 275. [c] Indictment for felony; conviction of misdemeanor.-Pen. Code § 801, requiring indictment or information for a misdemeanor to be brought or filed within one year, applies where the information or indictment charges a felony, and defendant is convicted of a misdemeanor. Peo. v. Picetti, 124 Cal. 361, 57 P 156. [d] Malicious misdemeanor.-In North Carolina an indictment for an attempt, in a wanton and malicious manner, to destroy the reputation of an innocent woman, is an indictment for a malicious misdemeanor, and is within the exceptions, provided by Code (1883) § 1177, to the rule that prosecutions for misdemeanors shall be barred after two years. State v. Claywell, 98 N. C. 731, 3 SE 920. [e] Bribery or corruption in office. (1) A tax collector, although a ministerial or executive officer, and not a judicial or quasi judicial officer, Tex.-State v. Newhous, 41 Tex. may commit such crimes as amount 185; Owens v. State, 38 Tex. 555; to "corruption in office," within the Sloan v. State, 27 Tex. Cr. 534, 179 meaning of the exception of Rev. St. (1909) § 4945, fixing the limitation for a prosecution "for bribery or for other corruptions in office" at five years. State v. Douglass, 239 Mo. 674, 144 SW 407. (2) The expression "corruption in office," as used in such statute, is not merely synonymous with the word "bribery" but includes such offenses as the embezzlement by a public officer of more than thirty dollars, in violation of Rev. St. (1909) § 4945. State v. Douglass, su pra. [f] An action by the state for penalties imposed by the Texas AntiTrust Act is a civil suit and is not within the provision of Code Cr. Proc. (1895) art 219, prescribing the time for the institution of criminal prosecutions. Waters-Pierce Oil Co. v. State, 48 Tex. Civ. A. 162, 106 SW 918, 927 [aff 212 U. S. 86, 29 SCt 220, 53 L. ed. 417]. [g] In New Hampshire an indictment for selling liquors without a license is not barred by the statute limiting prosecution under penal statutes. State v. Rundlett, 33 N. H. 70; Coburn v. Odell, 30 N. H. 540. [h] Violation of two statutes.Where the same act may amount to a violation of either or of both of two statutes having different periods of limitation, the question must be determined by reference to the law under which a conviction is sought. Thus a sale of liquor on Sunday, in violation of a statute in that behalf, is not merely a "desecration of the Sabbath-day," for which a prosecution must be commenced within six months after the offense, as provided by a statute relating to "desecration of the Sabbath-day"; but a prosecution for such unlawful sale may come within a different period of limitations. Shepler v. State, 114 Ind. 194, 16 NE 521. Bastardy proceedings see Bastards §§ 79, 80. 56. U. S. v. Brown, 24 F. Cas. No. 14,665, 2 Lowell 267; Schaumloeffel v. State, 102 Md. 470, 62 A 803; Peo. v. Stewart, 167 Mich. 417, 132 NW 1071; State v. Dent, 30 S. C. L. 469; State v. Fields, 18 S. C. L. 554. [a] In California Pen. Code § 801, providing that an indictment for a misdemeanor must be within a year after its commission, applies to an indictment for seduction under promise of marriage, where the judgment imposes a fine as punishment, although § 268 authorizes punishment by imprisonment in the state prison or by fine; § 17 provides that if the judgment imposes a punishment less than imprisonment in the state prison the offerse shall be deemed a misdemeanor for all purposes. Peo. v. Gray, 137 Cal. 267, 70 P 20. [b] In Louisiana Rev. St. § 986, providing that no person shall be prosecuted for any fine or forfeiture unless the prosecution shall be instituted within six months from the time of incurring such fine or forfeiture, (1) applies only to cases where imprisonment cannot be inflicted as a punishment, not to cases where it may be in the discretion of the court (State v. Courlas, 134 La. 364, 64 S 141; State v. Edwards, 107 La. 49, 31 S 381; State v. Markham, 15 La. 498. where the offense was punishable by fine alone, and the prescription was held inapplicable for the reason that, on repetition, the offense would be punishable at hard labor; State v. Jumel, 13 La. Ann. 399), (2) and hence is inapplicable to a prosecution for retailing spirituous liquors without a license, in violation of § 910, as amended by ment.57 [§ 342] 2. In Federal Courts. By the federal statutes it is provided in substance that no person shall be prosecuted for treason or other capital offense, wilful murder excepted, or for any offense not capital, except crimes under the revenue laws or the slave trade laws, unless the indictment is found within three years after the offense was committed. Indictments for crimes under the revenue laws or slave trade laws may be instituted within five years, as may also all suits or prosecutions for penalties or forfeitures.58 The statute applies to statutory offenses created before as well as after its enactment,59 and to common-law as well as to statutory offenses against the United States.60 An entry of goods at a custom house by a fraudulent invoice,61 and attempts to defraud the government of taxes on distilled spirits,62 or by the prosecution of a false claim or by false testimony, are crimes under the revenue laws to which the five years' limitation is applicable; but an offense arising under the act, establishing a money order system is not an offense under the revenue law, and the limitation applicable thereto is now three years.65 64 Repeal. The general three-year statute of limitations applicable to crimes was not repealed by the Pure Food and Drugs Law 66 containing no specific limitation on prosecutions thereunder, so as to require immediate prosecution on the theory that, in case of delay, the right to prosecute would be Acts (1902), No. 66, which from that time made the offense covered by that section punishable not only by a fine, but by a fine and imprisonment (State v. Courlas, supra; State V. Richard, 123 La. 179, 48 S 880). 57. State v. Elrod, 46 S. C. L. 662; State v. Thomas, 42 S. C. L. 295; State v. Free, 20 S. C. L. 628; State v. Lemon, 20 S. C. L. 628 note; State v. Fields, 18 S. C. L. 554. are 58. Rev. St. §§ 1043-1048. [a] Criminal contempts crimes within the meaning of Rev. St. § 1044. Gompers v. U. S., 233 U. S. 604, 34 SCt 693. [b] "The term 'willful murder is used in its strictly legal sense, and not in a merely popular sense. The section is dealing only with offenses against the United States. What is excepted, therefore, is the offense of 'willful murder,' committed against the sovereignty of the United States, indictable as willful murder under some statute of the United States, and cognizable as murder by its courts." U. S. v. Hewecker, 79 Fed. 59, 61. barred by laches. Nor is it repealed pro tanto by a statute 68 providing that accused shall be set free or his bail discharged if the grand jury fail to act within a certain time.69 Adoption of state law. The act of congress 70 providing that, when any offense is committed in any place, jurisdiction over which has been retained by, or ceded to, the United States, the punishment for which is not provided for by any law of the United States, the offender shall receive the same punishment that the laws of the state provide for the like offense, does not incorporate into the federal law the general statute of limitations of the state relating to crimes, but prosecution thereunder is governed as to limitation by the federal statute.71 [§ 343] 3. Indictment for Offense Higher Than That Proved. In some jurisdictions the statute of limitations applicable in the trial of a criminal case is that which relates to the offense charged in the indictment, and not that which relates to any minor offense of which accused may be convicted under the indictment. The general rule, however, is that if on an indictment for a felony accused is found guilty of some less crime included in the felony, and which constitutes a part of it, the conviction cannot be sustained, where the crime for which he is convicted is barred by the statute of limitations, although the crime of which he was indicted is not thus barred. Thus, where one is indicted for murder and found guilty of only manslaughter, or of an at 73 dictment. Rabinowitz v. U. S., 222 | result"). 59. U. S. v. Central Vermont R. 60. U. S. v. Porter, 27 F. Cas. No. 61. U. S. v. Hirsch, 100 U. S. 33, 63. U. S. v. Dennee, 25 F. Cas. No. 64. 13 U. S. St. at L. 76. 67. [c] Making false entries in books of national bank.-The limitation of U. S. v. Hopkins, 199. Fed. three years, provided by the federal 649, 653 (where it is said: "There statute, and not that of two years is nothing in the Pure Food and provided by the territorial statute, Drugs Law which interferes with the applies to the prosecution in the dis-operation of a statute of three years, trict court, of a person charged with beyond which delay cannot be almaking false entries in the books of lowed. Whether or not laches on the a national bank. U. S. v. Folsom, 7 part of the government officials had N. M. 532, 38 P 70. intervened, and whether the defendant's rights had thereby been prejudicially affected, or whether the act which was charged as an offense has been reduced to a mere technicality, would be something for the court to take into account in imposing sentence. But it cannot be said that the intent of Congress was to set up different standards or time limits for the actual filing of an indictment (either greater or less than three years as the case might be) by provisions in the law intended to assure a speedy hearing and a prompt method of determining whether acts would be considered by the department as violations of the law, from which a criminal prosecution might [d] Conspiracy.-(1) The threeyear period of limitations, and not the one-year prescribed by the Bankruptcy Act § 29 d with respect to offenses arising under that act, is applicable in a prosecution under Rev. St. § 5440 for a conspiracy to commit an offense arising under the Bankruptcy Act. U. S. v. Rabinowich. 238 U. S. 78, 35 SCt 682, 59 L. ed. 1211. (2) Under an indictment for conspiring to restrain interstate business of named competitors, it has been held that a proper construction of the indictment would permit a conviction for conspiring only against the competitors named who were in existence within three years preceding the in 68. D. C. Code § 939 (31 U. S. St. at L. 1189, 1342). 69. U. S. v. Cadarr, 197 U. S.. 475, 479, 25 SCt 487, 49 L. ed. 842, 3 Ann Cas 1057 (where it is said: "This statute is not one of limitations, having effect upon the time in which the particular case may be prosecuted after the commission of the crime, but relates solely to the right of action by the grand jury as to one who has been committed or held to bail, wherein it is provided that the grand jury must act within the time named or the accused shall be set free, if imprisoned, or his bail discharged if out on bond. We think this act was not intended to amount to a repeal pro tanto of the statute of limitation as contained in section 1044"). 70. Act July 7, 1898 (30 St. at L. 717 c 576 § 2). 71. U. S. v. Andem, 158 Fed. 996, 72. Jinks v. State, 114 Ga. 430, 40 SE 320; Wall v. State, 75 Ga. 474; Clark v. State, 12 Ga. 350; Reynolds v. State, 1 Ga. 222; Sikes v. State, (Ga. A.) 92 SE 553; Troup v. State, 17 Ga. A. 387, 87 SE 157. [a] In Louisiana (1) Acts (1894) No. 50, amending Rev. St. § 986, declares that prescription shall not apply to any conviction of a lesser crime or offense, under an indictment for willful murder, arson, robbery. forgery, or counterfeiting; but, on the contrary, said prescription, or exemption, shall not be pleadable against such an offense. State v. Bell, 48 La. Ann. 735, 19 S 671. The rule was formerly otherwise see infra note 74. (2) The act does not apply to an indictment for shooting with intent to murder. State v. Anderson, 51 La. Ann. 1181, 25 S 990. 73. Letcher v. State, 159 Ala. 59, 64, 48 S 805, 17 AnnCas 716 [quot Cyc]; Hickey v. State, 131 Tenn. 112, 174 SW 269; Turley v. State, 3 Heisk. (Tenn.) 11 [overr Carden v. State, 3 Head (Tenn.) 267]; Wilson v. State, 7 Yerg. (Tenn.) 516; Fulcher v. State, 33 Tex. Cr. 22, 24 SW 292; White v. State, 4 Tex. A. 488. And see cases infra note 74. Thus it [a] Illustrations.—(1) |