160 Ga. 331 | Ga. | 1925
At the May term, 1922, of Wilkes superior court the grand jury returned a bill of indictment against Taylor, charging him with being a non-resident dealer in securities, and as such having, on September 24, 1920, sold to one Willingham, and with intent to defraud Willingham, certain bonds of the Cumberland Oil & Refining Company, without first having secured from the Georgia Securities Commission a license authorizing him to sell said bonds, as required by the act known as the Georgia securities law. Acts 1920, p. 250. This indictment was nol. pros’d for “an informality.” A second indictment was returned against Taylor within six months, from the date of the quashing of .¡the first-mentioned indictment. In this indictment the defendant was
The defendant is charged with a misdemeanor. Misdemeanor indictments must be returned within two years after the commission of the offense, and at no time thereafter; but “if the indictment is found within the time limited, and for any informality shall be quashed or nol. pros’d, a new indictment may be found and prosecuted within six months from the time the first is quashed, or nol. pros’d.” Penal Code (1910), § 30.
“Commercial paper or other evidence of indebtedness running not more than twelve months from the date of issue” is included in securities in “Class A” as defined by the Georgia securities law. Acts 1920, pp. 250, 253, 254, Park’s Code (Supp. 1922), § 2909 (r). The sale of the securities embraced in this class is not subject to the provisions of this act. íd. In the first indict-’ ment the defendant was charged with selling certain bonds of the Cumberland Oil & Kefining Company. These bonds were commercial paper or evidences of indebtedness of said issuing company. They were payable in one jrear from date of issue. Consequently their sale did not fall within the provisions of this act. Ergo the first indictment set out no offense committed by the defendant.
The second indictment charged the defendant with a new,' separate, and distinct offense. For this reason the former indictment, if it had set out a penal offense, would not have the effect of avoiding the statute of limitations as to the offense set out in the second indictment. Cox v. Strickland, 120 Ga. 104 (5) (47 S. E. 912, 1 Ann. Cas. 870); Southern Express Co. v. Sinclair, 135 Ga. 155 (68 S. E. 1113). While the cases cited are civil cases and deal with suits renewed under section 4381 of the Civil Code (1910), the reasoning of these cases is applicable to the renewal of indictments under section 30 of the Penal Code (1910).
Applying the principles above ruled, we think that the trial court erred in striking the special plea of the defendant, and that the question propounded by the Court of Appeals should be answered accordingly.