
    The State vs. William Howard, Sr., and George Howard.
    
      Cow Stealing and Malicious Trespass — Limitations, Statute of — Practice.
    Indictment for cow stealing, docketed in District Court at April Term, . 1867. Hoi. pros, entered at April Term, 1868, and new indictment for cow stealing and malicious trespass then docketed. The offence was committed in 18C8, and so laid in the indictment. After the evidence for the State had been closed, the presiding Judge quashed the indictment, on the ground that the prosecutor was barred by the Act of limitations of 1748. Held, that the order to quash was erro- ' neons, and case restored to the docket.
    The District Court has jurisdiction of offences committed before the Act creating the Court was passed.
    An indictment cannot be quashed because the prosecution is barred by lapse of time.
    A nol. pros, does not put an end to a criminal prosecution, as non suit does to a civil action.
    Discharge of defendant from his recognizance is the regular mode of terminating a prosecution without trial, but such, it seems, will not be the effect if an indictment be pending and the case be continued.
    Prosecution for cow stealing is barred, it seems, by the Act of 1748; but not a prosecution for malicious trespass under the Act of 1857. In the latter offence the fine only is barred.
    IN THE DISTRICT COURT, EDGEFIELD, APRIL TERM, 1868.
    The report of the presiding Judge is as follows:
    "This was an indictment under the Act of 1789, for cow stealing, and for malicious trespass under.the Act of 1857. When the case was called- for trial, the Solicitor asked leave to enter a nolle proseguí, and to give out a new indictment, which was granted, the counsel for the defence, not objecting. At April Term, 1867, the defendants had been discharged from recognizance, the prosecutor having failed to appear.
    “The original indictment contained only the count for cow stealing. Defendants pleaded not guilty. After the close of the testimony on the part of the State, defendants’ counsel moved to quash the indictment, on the grounds that there was neither affidavit nor warrant, and that the prosecution was barred by the Statute of Limitations. They demanded the warrant and affidavit, and the Solicitor, as also the Deputy Solicitor, who had prepared the original indictment, replied that they could not produce them, and asked leave to prove their loss, and that the prosecution was commenced within six months after the offence charged. I was of opinion that the defendants, by their plea of not guilty, had deprived themselves of the right of objection to the irregularity of the pleadings, but thought, and so decided, that even admitting the proof of the loss of the affidavit and warrant, and that the prosecution had been commenced within six months from the commission of the offence, still the effect of a nolle prosequi was to force the State to commence de wvo, and that as the only evidence before the Court was that the offence had been committed in May, 1862, or 1863, hot only six months, but over five 3ears had elapsed since that date and the tim'e of the giving out of the new indictment, and therefore the prosecution was barred.
    “ The Slate vs. McKee, 1 Ball. 653, though not exactly analogous, is more so than any I have been able to find. That case decides that a nolle prosequi may be entered during all the stages of pleading to the indictment, up to the time when the jury are charged, but not after. The effect of the 'nol. pros, upon the Statute of Limitations is not there decided, but I take it for granted! that had that been an indictment for cow stealing under the statute, the ■bar of the statute would have been complete upon entry of 
      ml. pros, after the lapse of five years, as in this case. The plaintiff’s fourth ground of appeal is decided in the cases of The State vs. Youngblood, 2 Me. 241, and The Slate vs. Free, 2 Hill, 628. Those cases concur in deciding that indictments for hog stealing are barred by the Statute of 1748. The fifth ground is concluded by the words of the Act of 1748, Public Laws, 217, ‘That in all and every case where any penalty, fine or forfeiture whatever, hath been or shall hereafter be inflicted or imposed by any Act or Acts of the General Assembly of this Province, already passed or hereafter to be passed, and the time of prosecuting the offender or offenders, against such Acts not thereby provided, no informaron, action, suit or prosecution, shall be had, issued, brought or commenced against the offender or offenders against any such Acts, for or in respect of any such penalty, fine or forfeiture, unless the same be done within six months after the date of passing this Act, if the offence hath already been committed, and within the same space of time after the offence committed for the future.’ J he Act of 1857, under which the defendants are indicted for malicious trespass, does not specify any time within which to prosecute the offender, and therefore the provisions of the Act of 1748, above referred to, apply to the Act of 1857 as to the bar of the statute.
    “The remaining grounds of appeal have been already substantially answered. It will be seen from the foregoing that I did not decide as stated in the first ground of appeal. What the Court iutended to decide, and did decide,-is more correctly stated in the second ground. I am aware that the case of The Slate vs. Joseph Haskell, 3 Hill, 95, decides that the entry of nolpros, does not put an end to the case, and does not entitle the defendant to be discharged from custody,,nor his bail to be released from recognizance. But that was an indictment at common law for an assault, and this is an indictment under two several and distinct statutes-Most assuredly tbe prosecution for malicious trespass not included in tbe original indictment could not be sustained after tbe lapse of nearly five years.”
    The State appealed and now moved this Court to reverse tbe decision of tbe Judge, quashing tbe indictment, on tbe grounds:
    1. That bis Honor erred in deciding that if six months bad elapsed from the commission of tbe offence prior to bill of indictment given out, the indictment was barred.
    2. Because bis Honor erred in ruling, that where an indictment bad been nol. pros'd, and another indictment for the same offence immediately given out, tbe Statute of Limitations ran from the time of tbe commission of tbe offence to the time of the giving out of tbe second indictment.
    3. Because six months bad not elapsed from tbe commission of the offence to tbe commencement of tbe prosecution, and it was so proved.
    4. Because indictments for cow stealing are not barred by the Statute of 1748.
    5. Because indictments for malicious trespass are not barred by tbe Statute of 1748.
    6. Because defendants’ plea of not guilty was a waiver of tbe plea of tbe Statute of Limitations of 1748.
    7. Because it was incumbent on defendants to prove that their case was within the provisions of A. A. 1748, and tbe same was not done.
    
      8. Because bis Honor should have allowed proof of the existence, loss and contents of the affidavit of prosecutor, which was the commencement of this prosecution, and .of the warrant based thereon, and of the time when said affidavit was made and said warrant issued.
    9. Because, even if defendants were entitled to the benefit of the bar of the Statute of 1748, they could not avail themselves of it .so as to quash the indictment.
    
      Youmans, Solicitor, for the motion.
    The affidavit or information on which warrant issues, or indictment is given out, is the commencement of the prosecution so far as questions concerning Statute of Limitations are involved. 1 Brev. 160: 10 Rich, 145; 2 McO. 489; Harper, 813.
    Defendants can derive no benefit as to Statute of Limitations, from first indictment being ml. pros'd. 1 Brev. 160; 2 MoC. 489 ; 3 Hill, 95.
    Indictment for cow stealing not barred by Statute of 1748, because the Statute of 1798 does not create the offence. 2 Bail. 555.
    Indictment for malicious trespass not barred by the Statute of 1748. At most the bar goes only to the fine and not the imprisonment. 2 Bail. 554; 2 Hill, 628; 1 Rich. 469 ; 12 Rich. 665 ; 2 McC. 483.
    Defendants’ plea of not guilty was such a waiver of the Statute of Limitations as not to require the State to prove commencement of prosecution in six months from the offence, and to entitle the State to show in reply to defendants’ motion, that it had been so commenced. 10 Rich. 148.
    
      'Tbe question was matter in pais, and should have - been passed on by the jury. 12 Eich. 666.
    
      Griffin, and 'Gary, contra.
   The opinion of the Court was delivered by

Wardlaw, A. J,

The defendants in 1863 did the acts for which they were indicted. They were soon afterwards, as the Solicitor alleges, arrested under a warrant for cow stealing, and entered into recognizances. No further proceedings were had before the organization of the District Court for Edgefield, which took place in the winter of 1866-7. At the April Term, 1867, of the District Court, an indictment against them for cow stealing was docketed, and the prosecutor not appearing, they were discharged from their recognizance, but (as the counsel have plainly stated in their written argument exhibited to this Court,) the cause was then continued. At April Term, 186S, on motion of the Solicitor, a nolle prosequi was entered, and immediately afterwards a new indictment for cow stealing and malicious trespass, alleging for time a day in June, 1863, was docketed, to which the defendants, both being in Court, personally and by attorney, pleaded not guilty. When the testimony on the part of the State had been closed, the defendants moved to quash the indictment, because there was not to be found either affidavit or warrant, and because the prosecution -was barred by the Act of Limitations. The Solicitor offered to prove the existence and loss of the affidavit and warrant, and that the prosecution was commenced within six months after the commission of the offence. The District Judge held that by pleading not guilty the defendants had waived the right to object to irregularities preceding, but that the proof offered by the Solicitor would be unavailing because tbe effect of tbe nol. pros, was such as to require a new commencement of the prosecution, and the new prosecution was barred by the lapse of time from 1863 to 1868. Therefore he quashed the new indictment. The Solicitor appeals, and various points of law are presented, for the understanding of which the foregoing statement will be sufficient. The points have almost all hitherto received the consideration of this Court, and little more will now be done than to refer to adjudged cases.

The District Court had jurisdiction of the cause, notwithstanding that the offence was committed before the establishment of that Court. State vs. Sullivan, 14 Rich. 286; not at all contradicted by anything said in the State vs. Walker, 14 Rich. 36.

Quashing an indictment at the instance of the defendant is a very strong proceeding, now little known in our practice, and justifiable only by some plain and gross defect in the proceedings, such as would render a judgment given thereon against the defendant erroneous. It has been a matter of dispute whether judgment could be arrested when it appears upon the face of the indictment that, according to the allegation of time there made, the prosecution was barred. Our own decision, as will be seen below, being that it could not. But many defects which would serve to arrest judgment, and many more that would sustain a demurrer, would be insufficient to authorize the summary interposition of a Judge by quashing the indictment.

A nolle prosequi entered by the prosecuting officer is not the termination of a criminal case, as a nonsuit is of a civil one, The indictment is one of the stages of proceedings, and a discharge of that by nol. pros, does not- impair the previous proceedings. The State vs. Hackett, 3 Hill, 95; Smith ads. Shackleford, 1 N. & McC. 36; Teague vs. Wilks, 3 McC. 463.

Tbe discharge of the defendant from his recognizance is the usual and regular mode of terminating a prosecution without a trial, and if there had been no distinct continuance of this case in April, 1867, such would have been the effect of the discharge then made. But the continuance operated to render the discharge nothing more than the discharge of the bail, for which a good reason might have been found in the fact that the recognizance taken before the establishment of the District Court could not have required appearance in that Court, but was probably adapted only to the Superior Court of Sessions.

The Act of 1748, (8 Stat. 701,) contains the only limitation of prosecutions which is applicable to this case. The evils of prosecutions instituted long after offences committed, or grievously delayed in their progress, have to some extent been guarded against by directions given to magistrates and other public officers, which are mostly embodied in the Acts of 1839; but the connection of time which must subsist between one step in a case and the next, has not been fixed in criminal proceedings, as it has been in civil, and to the wise discretion of a Grand Jury in rejecting bills that have been improperly delayed, or of a Judge in urging trial after bill found, the defendant called to answer a stale charge must generally look for protection. In the District Court, however, the powers with which the Judge is invested to direct the discontinuance of prosecutions before trial, (13 Stat. 388, § 7,) and to refuse an order for docketing an indictment, if in his judgment the prosecution thereof is not advisable, (13 Stat. 493, § 2,) are ample for preventing unjust and vexatious delays between the arrest and the indictment.

The Act of 1748 bars only pecuniary penalties. (State vs. Fields, 2 Bail. 554; State vs. Dent, 1 Rich. 469.) It applies to cow stealing under the Act of 1759, because other punishment, substituted for a fine not paid, will not be imposed where the liability to tbe fine has been barred, (State vs. Youngblood, 2 McC.. 241,) but it does not bar the fine () under the Act of 1857, against malicious trespasses, because that Act requires that, upon conviction thereof, the defendant “shall be fined and imprisoned at the discretion of the Judge,” the discretion not extending to the entire dispensing with either mode of punishment. (The State vs. Porter, 10 Rich. 145.)

The complaint made to a magistrate is a commencement of a prosecution sufficient to arrest the Act of Limitation. (The State vs. Fraser, 2 Bay, 96; The State vs. James, 2 Bay, 215; The State vs. May, 1 Brev. 160.) If, then, the prosecution for cow stealing was properly commenced in 1868, it was not barred in 1868; the nol. pros., no more than arrest of judgment would have done, (State vs. Thomas, 8 Rich. 298,) did not terminate it; the time laid in the indictment, not being of the essence of the offence, was immaterial; and if that time appeared on the face of the indictment to have been more than six months before the commencement of the prosecution, this would not be ground for arresting the judgment, much less for quashing the indictment. (State vs. Dent, 1 Rich. 473; State vs. Porter, 10 Rich. 146, 148.)

The prosecution for malicious trespass does not appear to have been commenced before 1868, and if the defendants should be found guilty of that offence, how shall they have the benefit of the bar which the Act raises against any fine thereupon? It will be seen .that the cases of Youngblood, Porter and Dent, before cited, all speak of special pleadings, but our pleadings in criminal cases is so generally ore tenus, and the bar of punishment is so nearly equivalent to legal non-guiltiness, that the ■ Court has permitted lapse of time, proved under the general issue to have tbe same effect as if it bad been pleaded specially. To show that notwithstanding conviction tbe fine bas been barred by tbe Act of 1748, tbe direction bas been as in tbe case of The State vs. Waters, (1 Strob. 61,) for tbe verdict to be in words sncb as these: “Guilty, but at a time more than sis months before tbe commencement of tbe prosecution.”

The motion is granted; tbe order for quashing the indictment set aside, and the case restored to the docket in like condition as it was in when the new indictment was docketed.

Motion granted.

DuNiciN, 0. J., and Lng-lis, A. J., concurred.

Motion granted. 
      
      (a) Sic, in orig. “Imprisonment” it is presumed was intended.
     