BUFORD, J.:
The appellant was indicted on the 13th day of December, A. D. 1944, in the Circuit Court of Manatee County. The indictment charged:
“that Anderson Mitchell, late of the County of Manatee, and State of Florida, on the 21st day of September, in the Year of Our Lord, one thousand, nine hundred and forty-four, in the County and State aforesaid, unlawfully and from a premeditated design to affect the death of Louis Roundtree, a human being, did kill and murder him with’ a pistol contrary to the form of the statute made and provided and against the peace and dignity of the State of Florida.”
The accused filed two motions to quash the indictment. The first motion stated the following grounds :•
1. Because the supposed or alleged shooting or killing in said indictment mentioned was, as a matter of fact, done more than two years prior to the.date of the filing and finding of said indictment and is barred -,by the Statute of Limitations in such .case made and provided except insofar as the offense constitutes a capital offense; - ■ ■
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“2. Because the Statutes in such case made and provided, to-wit: Section 932.05 F.S.A. is in conflict with Section 21, Article 3 of the Constitution of the State of Florida.
“3. Because the Statutes in such case made and provided, to-wit: Section 932.05 F.S.A. is in conflict with and in violation of the Constitution of the State of Florida.”
The Second motion contained the following grounds:
“1. That said Indictment fails to charge an offense against said defendant.
“2. That said Indictment fails to allege, set forth or show that the supposed or alleged shooting or killing of the deceased, Louis Roundtree, was done from a premeditated design to affect the death of the said Louis Roundtree.”
Both motions were denied.
At the trial, the undisputed and uncontraticted testimony was to the effect that the altercation in which Louis Round-tree was killed occurred on the 7th day of September, 1942, and, therefore, unless the last paragraph of Section 932.05 Fla. Statutes 1941 (same F.S.A.) is valid in its provisions, prosecution for the offense of which the accused was convicted was barred by the Statute of Limitations.
Section 932.05, supra, is as follows:
“Limitation of Prosecutions. — All offenses not punishable with death, save as hereinafter provided, shall be prosecuted within two years after the same shall have been committed. There shall be no limitation for offenses punishable with death. In all offenses not punishable with death where an indictment has been found or an information filed within two years after the commission of the offense and such indictment or information, because of any defect, omission or insufficiency in the contents or form thereof, is subsequently quashed or set aside after said two years period has elapsed, in that event further- indictment may be! found or informations filed for such offense within three months after the- entry of the order of the court quashing or setting aside the indictment on information, and prosecution thereunder shall proceed as if the same, were commenced within two years after the commission of the offense. In the trial on an indictment charging a capital offense a verdict may be returned for any offense less
than capital which may be included within such indictment, although the indictment may have been found more than two years after commission of the offense embraced in such verdict.”
The last paragraph of this Section was included in Chapter 16962 Acts of 1935 as an amendment to Section 5011 of the Revised General Statutes of Florida. The time within which an offense is committed is a jurisdictional fact in all cases subject to limitation. See State v. Steensland, 33 Idaho 596, 195 Pac. 1080, 13 A.L.R. 1442, 15 Am. Juris. 32, See. 342.
In the case of Nelson v. State of Florida, 17 Fla. 195, this court held:
“The statute of limitations in respect to crimes is to be construed liberally in favor of defendants, and it is not necessary for a party relying upon it to plead it in bar. The offense must be proved to have been committed within the statutory limitation.
“2. A conviction for murder in the third degree, although had on an indictment for murder, cannot be sustained where the offense was not prosecuted within the period fixed by the statute, to-wit: ‘Within two years next after the offense shall have been committed’.”
In Blackmon v. State, 88 Fla. 188, we held:
“Where an indictment for murder in the first degree is. found more than two years after the homicide occurred, there can be no conviction of the accused for any offense less than murder in the first degree, and a charge so instructing the jury is not erroneous.”
To the same effect in Perry v. State, 103 Fla. 580, 137 Sou. 798.
So, prior to the Acts of 1935 it was well settled in this: State that on an indictment for murder in the first degree where homicide was shown by the record to have been committed more than two years prior to the presentation of the’ indictment, no conviction could be had of a less degree of unlawful homicide than murder in the first degree. This-brings us squarely to the necessity of determining whether or not the last paragraph of Section 932.05, supra, is valid. See language, supra.
It is the contention of the appellant that this provision of the statute is in conflict with Section 1 of the Declaration of Rights of our Constitution because it is so framed as to deprive one of the equal protection of the law.
Indictments and informations are of the same dignity before the law in all cases in which they are both available as a basis for prosecution. See Sec. 10, Declaration of Rights.
One may be either indicted or informed against for the offense of murder in the second degree. He may be indicted for murder in the first degree and under such indictment he may be acquitted, of murder in the first degree and convicted of unlawful homicide of a less degree because the charge of the higher degree includes the charge of all lesser degrees of unlawful homicide. One guilty of murder in the second degree is guaranteed under Sec. 1 of our Declaration of Rights all the rights, privileges and immunities flowing from the law to any and every-one else under the like state of facts. See Noble v. State, 68 Fla. 1, 66 So. 153; State v. Bryan, 87 Fla. 56, 99 So. 327.
It is within the power of the legislature to fix the time in which prosecution for any offense may be commenced. It is not competent, however, for the legislature to fix the time within which a prosecution may be commenced if the prosecution is commenced by indictment and a different time if the prosecution be commenced by information. To hold otherwise would be tantamount to allowing the prosecuting officer to determine whether or not the statute of limitations should or should not be applicable.
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BUFORD, J.:
The appellant was indicted on the 13th day of December, A. D. 1944, in the Circuit Court of Manatee County. The indictment charged:
“that Anderson Mitchell, late of the County of Manatee, and State of Florida, on the 21st day of September, in the Year of Our Lord, one thousand, nine hundred and forty-four, in the County and State aforesaid, unlawfully and from a premeditated design to affect the death of Louis Roundtree, a human being, did kill and murder him with’ a pistol contrary to the form of the statute made and provided and against the peace and dignity of the State of Florida.”
The accused filed two motions to quash the indictment. The first motion stated the following grounds :•
1. Because the supposed or alleged shooting or killing in said indictment mentioned was, as a matter of fact, done more than two years prior to the.date of the filing and finding of said indictment and is barred -,by the Statute of Limitations in such .case made and provided except insofar as the offense constitutes a capital offense; - ■ ■
>'
“2. Because the Statutes in such case made and provided, to-wit: Section 932.05 F.S.A. is in conflict with Section 21, Article 3 of the Constitution of the State of Florida.
“3. Because the Statutes in such case made and provided, to-wit: Section 932.05 F.S.A. is in conflict with and in violation of the Constitution of the State of Florida.”
The Second motion contained the following grounds:
“1. That said Indictment fails to charge an offense against said defendant.
“2. That said Indictment fails to allege, set forth or show that the supposed or alleged shooting or killing of the deceased, Louis Roundtree, was done from a premeditated design to affect the death of the said Louis Roundtree.”
Both motions were denied.
At the trial, the undisputed and uncontraticted testimony was to the effect that the altercation in which Louis Round-tree was killed occurred on the 7th day of September, 1942, and, therefore, unless the last paragraph of Section 932.05 Fla. Statutes 1941 (same F.S.A.) is valid in its provisions, prosecution for the offense of which the accused was convicted was barred by the Statute of Limitations.
Section 932.05, supra, is as follows:
“Limitation of Prosecutions. — All offenses not punishable with death, save as hereinafter provided, shall be prosecuted within two years after the same shall have been committed. There shall be no limitation for offenses punishable with death. In all offenses not punishable with death where an indictment has been found or an information filed within two years after the commission of the offense and such indictment or information, because of any defect, omission or insufficiency in the contents or form thereof, is subsequently quashed or set aside after said two years period has elapsed, in that event further- indictment may be! found or informations filed for such offense within three months after the- entry of the order of the court quashing or setting aside the indictment on information, and prosecution thereunder shall proceed as if the same, were commenced within two years after the commission of the offense. In the trial on an indictment charging a capital offense a verdict may be returned for any offense less
than capital which may be included within such indictment, although the indictment may have been found more than two years after commission of the offense embraced in such verdict.”
The last paragraph of this Section was included in Chapter 16962 Acts of 1935 as an amendment to Section 5011 of the Revised General Statutes of Florida. The time within which an offense is committed is a jurisdictional fact in all cases subject to limitation. See State v. Steensland, 33 Idaho 596, 195 Pac. 1080, 13 A.L.R. 1442, 15 Am. Juris. 32, See. 342.
In the case of Nelson v. State of Florida, 17 Fla. 195, this court held:
“The statute of limitations in respect to crimes is to be construed liberally in favor of defendants, and it is not necessary for a party relying upon it to plead it in bar. The offense must be proved to have been committed within the statutory limitation.
“2. A conviction for murder in the third degree, although had on an indictment for murder, cannot be sustained where the offense was not prosecuted within the period fixed by the statute, to-wit: ‘Within two years next after the offense shall have been committed’.”
In Blackmon v. State, 88 Fla. 188, we held:
“Where an indictment for murder in the first degree is. found more than two years after the homicide occurred, there can be no conviction of the accused for any offense less than murder in the first degree, and a charge so instructing the jury is not erroneous.”
To the same effect in Perry v. State, 103 Fla. 580, 137 Sou. 798.
So, prior to the Acts of 1935 it was well settled in this: State that on an indictment for murder in the first degree where homicide was shown by the record to have been committed more than two years prior to the presentation of the’ indictment, no conviction could be had of a less degree of unlawful homicide than murder in the first degree. This-brings us squarely to the necessity of determining whether or not the last paragraph of Section 932.05, supra, is valid. See language, supra.
It is the contention of the appellant that this provision of the statute is in conflict with Section 1 of the Declaration of Rights of our Constitution because it is so framed as to deprive one of the equal protection of the law.
Indictments and informations are of the same dignity before the law in all cases in which they are both available as a basis for prosecution. See Sec. 10, Declaration of Rights.
One may be either indicted or informed against for the offense of murder in the second degree. He may be indicted for murder in the first degree and under such indictment he may be acquitted, of murder in the first degree and convicted of unlawful homicide of a less degree because the charge of the higher degree includes the charge of all lesser degrees of unlawful homicide. One guilty of murder in the second degree is guaranteed under Sec. 1 of our Declaration of Rights all the rights, privileges and immunities flowing from the law to any and every-one else under the like state of facts. See Noble v. State, 68 Fla. 1, 66 So. 153; State v. Bryan, 87 Fla. 56, 99 So. 327.
It is within the power of the legislature to fix the time in which prosecution for any offense may be commenced. It is not competent, however, for the legislature to fix the time within which a prosecution may be commenced if the prosecution is commenced by indictment and a different time if the prosecution be commenced by information. To hold otherwise would be tantamount to allowing the prosecuting officer to determine whether or not the statute of limitations should or should not be applicable.
It is no sufficient answer to say that the statute applies to all in like situation, i. e. to all who are indicted for murder in the first degree, because all men are innocent before the law until adjudged guilty by a court of competent jurisdiction, and an indictment creates no presumption of guilt. The constitutional guarantee of equál protection before the law is the shield against just such a thing as this.
A jury has said this man is not guilty of murder in the first degree and, therefore, he is entitled to every benefit to which any one else can be entitled who is also only guilty of murder in the second degree. This right of equal protection
may not be taken away by the State choosing to proceed with the prosecution by some method which will deprive him of the benefit of the statute of limitations while others guilty of the like offense may have the benefit of the statute of limitations because the State has chosen to proceed with the prosecution by a different method.
So it is, we hold that the last paragraph of Sec. 932.05, supra, offends against Sec. 1 of our Declaration of Rights and also against the Fourteenth Amendment of the Federal Constitution.
Having reached this conclusion, it is not necessary to discuss any other question presented by appellant.
For the reasons stated, the judgment is reversed with directions that appellant be discharged.
So ordered.
TERRELL, BROWN, THOMAS, ADAMS and SEBRING, JJ., concur.
CHAPMAN, C. J., dissents.