State v. Thomas

9 N.W.2d 442, 72 N.D. 537, 1943 N.D. LEXIS 89

• Court: North Dakota Supreme Court
• Decided: May 6, 1943
• Docket: File Cr. 188
• Status: Published

Opinions

Burke, J.:

An information, charging tbe defendant with tbe crime of robbery was filed in tbe district court of Grand Dorks county on January 18th, 1943. It was alleged in tbe information tbat the crime bad been committed on December 20th, 1937. Defendant demurred to tbe information upon tbe grounds, (1) tbat tbe court bad no jurisdiction of tbe offense charged therein; and (2) tbat upon tbe face of tbe information it conclusively appeared “tbat tbe crime alleged in said information has been barred by tbe statute of limitation as provided in tbe statutes of tbe state of North Dakota.” Tbe trial court made its order sustaining tbe demurrer upon tbe latter ground and directing tbe state’s attorney to file an amended information setting forth facts which would avoid tbe bar of tbe statute of limitations. 1 The state has appealed from this order.

There are five specifications of error which may be summed up under two general headings. "1. That a defendant in a criminal action may urge the defense of a statute of limitations by evidence under the general issue only and not by challenging the sufficiency of the information. 2. That the demurrer does not specify which statutory ground for demurrer is relied on. The statutory provisions which we must consider are as follows :

“An information for any other felony than murder must be filed, or an indictment found, within three years after its commission; provided, that nothing in this section contained shall be construed to bar or prevent a person prosecuted for murder from being found guilty of manslaughter and punished accordingly.” Section 10,521, Compiled Laws of North Dakota 1913.

“If when the crime or public offense is committed, the defendant is out of the state, or if the defendant is in the state when the crime is committed and. subsequently leaves the state, the information may be filed, or the indictment found, within the time herein limited, after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident -within this state, is part of the limitation.” Section 10,523, Supplement to Compiled Laws of North Dakota 1913.

“The defendant may demur to the information or indictment when it appears upon the face thereof, either:

“1. That the court has no jurisdiction of the offense charged therein; or, if an indictment, that the grand jury by which it was found had no authority to inquire into the offense charged, by reason of its not being -within the jurisdiction of the county or judicial subdivision.

“2.-----

“3.-----

«4. -----

■ “5. That it contains any matter, which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.” Section 10,737, Compiled Laws of North Dakota 1913.

“An indictment or information need contain no allegation of the time of the commission of the offense unless such allegation is necessary to charge the offense under § 7.

“2. The allegation is (of) an indictment or information that the defendant- committed the offense shall in all cases be considered an allegation that the offense was committed after it became an offense and before the finding of the indictment or information, and within the period of limitations prescribed by law for the prosecution of the offense.”

“3. All allegations of the indictment, information and bill of particulars shall, unless stated otherwise, be deemed to refer to the same time.” Section 11 of chap 132, Laws of North Dakota 1939.

“When an indictment or information charges an offense in accordance with the provisions of § 7, but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the Constitution of this State, the court may, of its own motion, and shall, at the request of the defendant, order the prosecuting attorney to furnish a bill of particulars containing such information as may be necessary for these purposes; or the prosecuting attorney may of his own motion furnish such bill of particulars.

“2. When the court deems it to be in the interest of - justice that facts not set out in the indictment or information or in any previous bill of particulars should be furnished to the defendant, it may order the prosecuting attorney to furnish a bill of particulars containing such facts. In determining whether such facts and, if so, what facts should be so furnished, the court shall consider the whole record and the entire course of the proceedings against the defendant.

“3. Supplemental bills of particulars or a new bill may be ordered by the court or furnished voluntarily under the conditions above stated.

“4. Each supplemental bill shall operate to amend any and all previous bills and a new bill shall supersede airy previous bill.

“5. When any bill of particulars is furnished it shall be filed of record and a copy of such bill given to the defendant upon his request.” Section 8 of chap 132, Laws of North*Dakota 1939.

“If it appears from the bill of particulars furnished under § 8 that the particulars therein stated together with any particulars appearing in the indictment or information do not constitute the offense charged in the indictment or information or that the defendant did not commit that offense, or that a prosecution for that offense is barred by the statute of limitations, the court may, and on motion of the defendant or of the prosecuting attorney shall, quash the indictment or information unless the prosecuting attorney shall furnish another bill of particulars which either by itself or together with any particulars appearing in the indictment or information so states the particulars as to make it appear that they constitute the offense charged in the indictment or information and that the offense was committed by the defendant and that it is not barred by the statute of limitations.” Section 9 of chap 132, Laws of North Dakota 1939.

“The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must'distinctly specify the grounds of the objection to the information or indictment, or it must be disregarded.” Section 10,738, Compiled Laws of North Dakota 1913.

It will be noted that § 10,521, supra, requires that prosecutions for felonies other than murder be commenced within three years but that § 10,523 provides the time when the defendant was not regularly a resident in the state shall not be included in the computation of time. Here it is alleged in the information that the crime was committed more than five years before the prosecution was commenced, and no mention is made therein of the place of the defendant’s residence during that time. Upon its face the information shows that the prosecution was commenced after the period of limitation had run unless there exist facts which would bring the case within the statutory exception. The first question is whether an information is sufficient which fails to allege facts which would give rise to the exception when it otherwise shows that the crime was committed without the limited period of time. There is much diversity of opinion in the decisions upon this question. 27 Am Jur 637, Indictments and Informations; 31 GJ 673. We do not consider it necessary to review these decisions because as we view it the statutes of the state clearly point the way to a correct decision.

By the provisions of § 11 of chap. 132, supra, it is not necessary to allege the time of the commission of an offense in an information or indictment. But an information or indictment which does not allege the time of the offense is made sufficient by a statutory presumption that the offense was committed within the period of limitations prescribed by law. Our legislature has thus accepted the view that an information or indictment in order to be sufficient, must show that offense charged was committed within the period limited by law for its prosecution, either by specific allegation or where no date is alleged, by aid of the statutory presumption. That the legislature so intended is supported by other provisions of chapter 132. Section 8 permits both informations and indictments to be supplemented by bills of particulars by order of the court, of its own motion, or upon the request of the defendant, or by the voluntary act of the prosecuting attorney. By the provisions of § 9, “if it appears from the bill of particulars . . . that the particulars therein stated together with any particulars appearing in the indictment of information . . . that a prosecution for that offense is barred by the statute of limitations, the court may, and upon motion of the defendant or of the prosecuting attorney shall, quash the indictment unless ihe prosecuting attorney shall furnish another bill of particulars, which either by itself or together with any particulars appearing in ihe indictment or information so slates the particulars as to nnahe it appear . . . that it (the offense) is not barred by Ihe statute of limitations (Italics ours.)

It is clear from the above language that one of the particulars upon which a defendant is entitled to demand enlightenment is the date of the commission of the offense charged and that when the allegations of the particulars, appearing in the bill, or in the bill and indictment or information taken together, discloses that the offense was committed at a time without the period of the statutory limitation the indictment or information is insufficient and must be quashed on defendant’s motion. We think it clear too that the legislature must have had § 10,523, supra, in mind when it enacted that part of § 9 which we have set forth in italics. This provision allows a prosecuting attorney to save an information or indictment charging a crime apparently barred by limitation by the filing of an additional bill of particulars setting forth the exception which would toll the running of the statute.

In this case the information alleged the commission of an offense upon a date more than five years prior to the date of the filing of the information. The limitation within which the prosecution for the offense must be commenced is three years. The prosecuting attorney did not amend the information or file a bill of particulars setting forth any facts which would. toll the running of the statute although- the trial- court afforded him an opportunity to do so. There can be no question but that chapter 132, supra, would require that this information be quashed upon defendant’s motion. The question then is may the insufficiency of the information in this respect be attacked by demurrer as well as by motion to quash.

The grounds for demurrer specified by § 10,737, supra, are exclusive and grounds not so specified may not be considered. 31 CJ 818; 23 Am Jur 702, Forgery. Defendant relies upon the fifth ground set forth in the statute, viz.: “That it (the information) contains any matter, which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.” Defendant contends that the information contains matter, which, if true, would constitute a legal bar to the prosecution. On the other hand the State says that the expiration of the period of limitation does not constitute a legal bar to the prosecution for an offense but is an affirmative defense which can only be raised by evidence under the general issue. Both views are supported by cited authority from the decisions of the Federal courts and those of other states. (Notes reviewing the decisions may be found in 99 ALR 153 and 33 Mich L Rev 805.) In this state, however, the legislature has given recognition to the theory of the cases which hold that the statutory limitation does constitute a bar to prosecution. Otherwise it would not have said as it did in § 9 of chap 132, supra, “If it appears . . . that the offense ... is barred by the statute of limitations the court . . . shall quash the indictment or information.” Both the choice of language and of remedy are inconsistent with the state’s theory that a statute of limitations in criminal matters is merely a statute of repose and a matter of affirmative defense. We must therefore consider that the expiration of the period of limitation for the prosecution of a crime is a legal bar to the prosecution and where the information or indictment discloses the bar, that fact is a ground for demurrer, by express statutory provision.

One question remains. Does the demurrer distinctly specify the grounds of objection as required by § 10,738, supra ? As stated therein the ground of demurrer is “That upon the face of the information it conclusively appears that the crime alleged in said information is barred by the statute of limitations as- provided in the statutes of th'e state of North Dakota.” Appellant contends that this language does not specifically set forth the grounds of objection and that the demurrer must therefore be disregarded. The gist of appellant’s objection is that the ground of demurrer is not couched in the language of the statute. We see no merit in the contention. Section 10,738 requires that the ground of demurrer must be distinctly specified. Here it is specified with greater clarity than if the general language of the statute had been used. As we have held that the specific ground is one which is included in the general ground set forth in the statute, the demurrer is sufficient as to form.

The order of the district court sustaining defendant’s demurrer is therefore affirmed.

Morris, Oh. J., and Burr and Nuessle, JJ., concur.