Opinion
(December Term, 1842.)
The indictment, under which a defendant is brought to trial, for trading with a slave, under the 75th sect., c. 34, of the Rev. Statutes, must be commenced within twelve months after the commission of the offense, according to the 80th sec. of the same chapter. It is no answer to this objection, that another indictment for the same offense was brought within the proper time.
APPEAL from Nash, J., at Fall Term, 1842, of IREDELL.
The defendant was indicted for trading with a slave; and in his defense, relied upon the act prescribing the time within which such indictments should be commenced. From the evidence it appeared that more than one year had elapsed after the trading had taken place, before the filing of this bill of indictment. To answer this objection, it was shown that, within one year from the commission of the offense, another bill of indictment had been filed against the defendant for the same offense, and was then pending in Court. At the request of the counsel, the question as to the lapse of time was reserved by the Court. The jury, upon the evidence, convicted the defendant. On the question reserved the Court was of opinion, that the present bill was barred by the statute, as well upon general principles, as upon the provisions of the statute under which the indictment was preferred. In the act, limiting the time within which misdemeanors in general shall be prosecuted to two years, it is provided, that when the prosecution shall be commenced in time, but a nol. pros. shall be entered or the judgment arrested, a new bill may be sent, in which case the time shall be computed from the termination of the first. The act, under which this bill was preferred, has no such reservation, and it was passed at the same session of the Legislature with the other. The Court directed the verdict for (33) the State to be set aside, and a verdict for the defendant to be entered. The State appealed to the Supreme Court.
Attorney-General, for the State.
Caldwell, for the defendant.
The defendant was indicted and tried for trading with a slave, an offense embraced in ch. 34, sec. 75, Rev. Stat. More than one year had elapsed between the time of the trading with the slave, and the finding of this bill of indictment. In sec. 80, Rev. Stat., ch. 34, it is enacted, "that no suit or indictment shall be prosecuted for any violation of the seventy-fifth and seventy-ninth sections of this act, unless such suit or indictment be commenced within twelve months after such violation." The defendant, on the trial, insisted that the indictment was barred by the said act of limitation. The solicitor for the State then exhibited evidence from the records of the Court, that the defendant stood charged upon another indictment, for the same offense, found by a grand jury within the time specified by the act. The jury found a verdict for the State, and the question of law was reserved for the opinion of the Court. Afterwards, the Court gave judgment for the defendant, and the solicitor for the State appealed.
Section 80 of the statute directs, that unless the "indictment be commenced" within twelve months from the date of the offense, the prosecution shall not be carried on. An indictment ( indicare, to show), is a written accusation of one or more persons, preferred and presented on oath by a grand jury. 4 Bla. Com., 302. Vide also, 2 Tomlin's Law Dictionary, 163.
When the accusation is thus found, it becomes an indictment. In the literal sense, therefore, of this section, the accusation must be thus found within twelve months after the violation of the Statute, or it cannot be presented afterwards. The phrase, "indictment commenced," is indeed one not of frequent use, and it has been suggested that probably the term indictment was used in the statute instead of, or in the sense of, the term "prosecution," and, therefore, in the construction of the statute, we may substitute the latter and more accurate expression. (34) But there ought to be very cogent reasons for taking such a freedom with plain intelligible words, before it should be resorted to. There is nothing necessarily inaccurate in the phrase used by the Legislature. An indictment may be begun, as well as afterwards withdrawn or prosecuted. It is begun by the finding of the grand jury, as an action is begun by suing out the writ. There is nothing absurd in the supposition that the Legislature intended to prohibit prosecutions, unless the indictment were found within a limited period; for in the 8th section of the 35th chapter of the Rev. Stat., it is enacted, with regard to certain offenses, that "the prosecution shall commence within two years after the commission of the said trespasses and misdemeanors, and not after; and, no bill of indictment shall be found, or presentment made, by the grand jury of any county in the State, where the offenses aforesaid shall have been committed two years next before the finding of the said indictment, or making the said presentment." It would seem, indeed, that the Legislature had here declared, that the commencement of a prosecution, and the finding of an indictment, were equivalent expressions; and, if so, we should advance but little in the exposition of the statute before us, by substituting one for the other. But be this as it may, we deem it most safe, in the construction of a penal statute, to guard against that liberality of interpretation, which might give to it an operation more extensive than its words manifestly require, either by bringing within its purview cases not in terms within its enactments, or excluding from its savings and exceptions cases which are comprehended within their literal sense.
PER CURIAM. Affirmed.
Cited: S. v. Morris, 104 N.C. 840.
(35)