Lead Opinion
Thе term of court at which this indictment was found was opened at 11 o’clock, and Acts 1888-89, p. 64, authorizes the opening of courts in the .Fifth judicial circuit at 10 a. m. Indeed, it is сonceded in brief of counsel that the court was legally opened, and the the grand jury findiing the indictmennt was legally organized, unless this act be unconstitutional, or unlеss it was repealed by Acts 1890 p. 68. This act only repeals the Code of 1886 in so far as it applies to the counties of Lamar, Franklin, Fayette, and Marion, and did nоt have the effect of revising and extending said section, .so as to make it extend to counties which had been previously removed from its influence by subsequent acts., The subject as expressed in the title of the act was to amend said section 750 of the Code, so far as the same applies to the counties оf Lamar, Fayette, Franklin, and Marion; in other words, to provide for the holding or opening of courts in these counties. The body of the act does attempt tо re-enact the said section, as applied to the entire state, except as to these four counties; but to- hold that said act regulated the оpening of courts in all the counties of the -state would render it much broader than its title indicates, and make it apply to a subject not clearly exprеssed in said title, and probably repugnant to section 45 of the Constitution of 1901.
It is also insisted that Acts 1888-89, p. 64, is violative o-f section 19, art. 4, of the Constitution of 1875, because it wаs so altered or amended as to change its original purpose; the change complained of being from a bill “-to regulate and fix the time of opеning courts in the Third
This case is treated upon the assumption that the statute with reference to the hour of opening court is mandаtory ; and, as the statute, was complied with, it is unnecessary for us to determine whether it was mandatory or directory.
While section 4914 of the Code of 1896 requires that indiсtments must be presented to the court by the foreman in the presence of at least 11 other jurors, we think that the record shows a compliance with this statute. It recites that it was returned into open court by the foreman in the presence of “all the other grand jurors.” The record also shows that there were mоre than 11 other grand jurors. — Russsell v. The State,
Charge 3, .requested by the defendant, asserted the law, and should have been given. Nor was it covered by given charge 2.
It is insisted that, while the offensе for which the defendant was indicted was not barred by the statute of limitations, the one for which he was convicted, being a misdemeanor, was barred by section 4914 оf the Code of 1896. It is true the only proof as to the commence ment of the prosecution is the indictment, which was returned more than a year after the assault; but the point was raised only by the general charge, which did
As this case must be reversed, however, for other reasons, we may аs well lay down the rule on this subject as a guide upon the nest trial, notwithstanding it may be dictum upon this appeal. The defendant having been acquited of the felony, the state will have to rely upon the misdemeanor, in the event the former acquittal of felony is pleaded by the defendant. Then, unless the proof shows that the prosecution was commenced within a year after the commission of the said assault, the defendant will he entitled to an acquittal. The laAV is well settled on thе subject: “If, on an indictment for a felony, the accused is found guilty of some less crime included in the felony and which constitutes a part of it, the convictiion cаnnot be sustained where the crime of AAdiich he is convicted is barred by the statute of limitations, although the crime for AAdiich he Avas indicted is not thus barred.” — 12 Cyc. 257. This rule is sanctiоned in the cases of Turley v. State, 3 Heisk. (Tenn.) 11; Fulcher v. State,
The judgment of the circuit court is reversed, and the cause is remandеd.
Reversed and remanded.
Dissenting Opinion
(dissenting). The defendant was pnt to trial on an indictment charging an assault with intent to murder. This indictment ivas returned morе than 12 months after the act for which the judgment of conviction now complained of by the defendant was committted. Accordingly, upon the sound holding made in the last paragraph of the opinion of the majority, the misdemeanor of which defendant ivas convicted was not embraced in the major charge of аssault with intent to murder, unless taken out of the effect of that bar by proof that the offense charged was a continuance of a prosecution instituted against, this defendant before the 12 months’ bar stated operated to conclude a prosecution for the misdemeanor of which the defendant was attеmpted to be convicted. The bill of exceptionss purports to contain substantially all of the evidence aduced on the trial. No evidence, thе effect of which ivas to avoid the bar stated, was offered.
In this state of the case I am of the opinion that the court was wholly without jurisdiction to render the judgment, under this indictment, for an assault with a weapon, a misdemeanor, as was here undertaken. The point has been, in my opinion, expressly decided in McDowell v. State,
Nor is there any merit in the suggestion that the defendant, if his appeal should be dismissed on the ground that it was void, as is my opinion should be done, Avould be left with the judgment below against him, for the reason that, if such dismissal was entered, it would be a final adjudication of the invalidity of the judgment, and the court below would not attempt its enforcement; but, if it did undertake to enforce it, prohibition and other remedies, it may be, would be subject to defendant’s employment. To reverse this case on the prеsumption that evidence may be introduced to avoid the bar before stated is, in my opinion, to presume jurisdiction in the face of the record before us, which denies it.