106 Ala. 136 | Ala. | 1894
— The question of importance presented by the record is, whether the prosecution, was barred by the statute of limitations, at the time of the finding of the indictment. The offense charged in the indictment is that created by the statute, (Cr. Code, § 3812) — the entering into a contract in writing for the performance of any act or service with the intent to injure or defraud the employer, thereby obtaining money or other personal property from the employer, and without refunding the money or restoring the property, and without just cause, and with the like intent, refusing to perform the act or service. The punishment imposed, is that which on conviction is imposed for larceny. The averment of the indictment is that a sum less than twenty-five dollars was obtained by the defendant, and of consequence, the offense charged is a misdemeanor. The prosecution of all misdemeanors in the circuit, city, or county court, unless otherwise provided, is barred, if not commenced within twelve months after the commission of the offense. — Cr. Code, § 3711. A prosecution may be commenced by finding an indictment, the issuing of a warrant, or by binding over the offender. — Cr. Code, § 3711. If the issue of a warrant is relied upon to save a subsequent indictment from the bar of the statute, the indictment must charge the commission of the same offense, as that which is described or charged in the warrant. If the indictment charges another distinct offense, though it may belong to the same family of offenses as that charged or described in the warrant, in no just sense is it a continuance of the prosecution originated or
The warrant charged the offense of obtaining money under false pretenses, a fraud it may be, bearing some resemblance to the fraud the statute under whicli the indictment is found, is designed to punish. But resemblance is not identity, and the two offenses are of different constituents ; the measure of proof which- will support the one, would not be sufficient to support the other. Besides, if the warrant was intended to commence a real prosecution, it was not executed until more than eighteen months after its issue, when it had lost all vitality, and was incapable of continuing the prosecution it was intended to commence. Lades in the commencement of presecutions, or in the continuance of them, is the mischief the statutory limitation is intended to prevent. It would be singular, if a warrant of arrest, which had lost all vitality, could vitalize a subsequent prosecution by indictment.
The city court erred in overruling the demurrer to the replication to the plea of the statute of limitations. The special plea was not necessary, for the defense was available under the plea of not guilty. — Whart. Or. PL & Pr. § 317. And the court erred in the refusal to charge the jury as requested by the defendant, that if they believed the evidence a verdict of not guilty should be rendered.
The judgment is reversed, and a judgment will be here entered sustaining the demurrer to the replication, acquitting the defendant, and discharging him from further custody.
Reversed and rendered.
