
    Supreme Court—Appellate Division—Second Department.
    July, 1901.
    THE PEOPLE v. PETER AUSTIN.
    (63 App. Div. 382.)
    1. Indictment—Murder or manslaughter—Lapse of five tears from COMMISSION OF CRIME-CODE GRIM. PRO., 142.
    Upon the trial of an indictment for murder in the second degree, after the finding of a verdict of manslaughter, defendant’s counsel for the first time moved that on the indictment, evidence, certificate of conviction and the whole record of the case that the defendant be discharged, upon the ground that the statute of limitations was a bar to any prosecution for the crime of manslaughter, which motion was denied. Held no error, as the appellant having voluntarily taken advantage of the verdict, was not entitled to be discharged on arrest of verdict of judgment unless it appeared that there was not sufficient evidence to convict him of any crime.
    2. Same—Statute of limitations.
    The question that the offense of which accused had been convicted was barred by the statute of limitations was not presented on a motion on arrest of judgment.
    Appeal by the defendant, Peter Austin, from a judgment of the County Court of Dutchess county in favor of the plaintiff, rendered on the 24th day of December, 1900, convicting him of the crime of manslaughter in the second degree, on the trial off an indictment for murder in the second degree, and also from an order bearing date the 24th day of December, 19 00, denying the defendant’s motion for his discharge and for the arrest of conviction and judgment.
    The crime charged in the indictment was committed in East Eishkill, Dutchess County, 1ST. T.
    Frank B. Down (Charles A. Hopkins with him on the brief), for the appellant.
    William B. Lee, District Attorney, for the respondent.
   Hirschberg, J.

The appellant, in an altercation with one Charles Brower, on the 2nd day of July, 1886, killed him and hid his body in an unused well. The crime was not discovered until the summer of 1900, and on September thirteenth of that year the appellant was indicted for murder in the second degree. The only point presented on the appeal is that as more than five years intervened between the commission of the crime and the finding of the indictment, and as- by section 142 of the Code of Criminal Procedure the appellant could not he indicted for manslaughter after the lapse of five years, he could not he lawfully convicted for .that offense under the indictment for murder, notwithstanding the provision of section 141 to. the effect that there is no limitation of time within which a prosecution for murder must be commenced.

By section 141 of the Code of Criminal Procedure it is provided that “there is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.” By section 142 it is provided thaitl “an indictment for a felony, other than murder, must be found within five years after its commission, except where a less time is prescribed by statute.” And by section 444 it is provided that “upon an indictment' for a crime consisting of different degrees-, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the crime.” The appellant was clearly prosecuted for murder; he was not indicted for manslaughter; and the conviction was for an inferior degree of thei crime of homicide. Strictly s-peaking, and in the phraseology of section 444, the appellant has been found guilty of the crime charged against Mm, not in the degree charged, but in an inferior degree. Ho express provision of the statutory law has, therefore, been violated, but as the statute is to be liberally construed (People v. Lord, 12 Hun, 282), a, strong argument is made that within the spirit of the limitation no conviction should be allowed for an inferior degree of an offense when the time for the prosecution of that degree] had expired when the indictment, Was found charging the main offense.

The authorities are not harmonious. The only case upon the question in this State which has been found is that of People v. Dowling, 1 N. Y. Crim. Rep. 529. It is a decision rendered at the Albany Oyer and Terminer in, January, 1884, under the former statute 2 R. S. 726, see. 37, sec. amd. by Laws of 1873, chap. 630, providing that an indictment for murder might be found at any time after the death of the person killed, and that other indictments must be found within, five years after the commission of the offense. The court held that under an indictment for murder thei defendant might he convicted of manslaughter, notwithstanding more than five years had elapsed between the commission of the offense and the finding of thei indictment. Mr. Justice Learned said (p. 531) : “But I think I am hound to take thei strict language of the statute, and that I have no right to extend it by implication. That statute limited simply the time for finding indictments'. Along with that statute stood the section last quoted, that upon an indictment for any offense consisting of different degrees, the jury may find the accused guilty of any degree of such offense inferior* to that charged, or of an attempt to commit such offense. I do not think I have a right, by construction, to; interpolate into that section 27 the words ‘if such indictment he found within the time prescribed for such inferior degree.’ It will he noticed that section 27 also- authorizes the finding the accused guilty of an attempt, etc., etc. There are special provisions for punishing attempts. 2 R. S. p. 698, sec. 3. C'ould the court assume to say that under this section 27, on an, indictment for murder, whenever found, the jury might not convict of an attempt ?”

To the like effect is Clark v. State of Georgia (12 Ga. 350). The Penal Code there provided that an indictment for an assault with intent to murder should ha found within four years next after the commission of the offense, and for an assault and battery within two years. The court held that under a timely indictment for assault with intent te» murder, the defendant could be convicted of assault and battery, although the statute had run against that charge at the time of thei finding of the indictment. Warner, J., said (p.. 352) : “In this case the indictment accusing the defendant, with having committed the offence of an assault with intent to murder was found and filed, in the proper court, within four years from the time the offence was alleged to have been committed; hut the defendant insists that inasmuch as the petit jury, on thei traverse of the hill of indictment, found him guilty of an assault and battery only, and more than two years having elapsed from the t'imie of the commission of the offence and the finding and filing the bill of indictment, that he is protected, by the st-atutie. The answer is, that the statute applies to the indictment! on which the defendant was arraigned and tried, and not to the minor grade of offence for which, he might be found guilty on the trial for the higher grade of crime for which thei grand jury accused him. The defendant was indicted for am assault with! intent to murder; was arraigned and tried on that indictment, and had all the righto and privileges incident to a trial for that grade of offence. The Statute of Limitations, in our judgment, as provided by the Penal O’ode, applied to the offence for which the defendant was indicted, and not to the minor offence of assault and battery, of which he was found guilty on the traverse of that indictment.”

There are many cases decided in other states to the contrary. Among them are People v. Miller, 12 Cal. 291; People v. Picetti, 124 id. 361; Riggs v. State of Mississippi, 30 Miss. 635; White v. State, 4 Tex. App. 488; People v. Burt, 51 Mich. 199. See, also; Bishop Stat. Crimes, 3rd ed., sec. 261d. La People v. Miller, supra, the reasoning by which the result was reached was admittedly in conflict with the decision in this state in People v. Van Santvoord, 9 Cow. 655, and the case; therefore, need not he regarded as authority here. In White v. State; supra, the decision apparently rested upon the wording of the statute of the State of Texas, and was not regarded by the court as necessarily conflicting with Clark v. State of Georgia, supra. The court said in reference to the latter case (p. 491) : “The Supreme Court held that the Statute of Limitations; as provided by the Penal Code, applied to the offense for which defendant was indicted, and not the minor offense of assault and battery, of which he was found guilty on the traverse of that indictment. The court based their decision solely upon the 35 th section of the fourteenth division of the Penal Code; which we have given. The difference between that section, of their Penal Code and article 185 of our Code of Procedure (Pasc. Dig. art. 2652) will he readily seen by comparing them, together.” In Riggs v. State of Mississippi, supra, the language of the statute was that “noi person shall be prosecuted, tried or punished for any offence, wilful murder, &c., excepted, unless the indictment, presentment or information for the same he found or exhibited within one year after the offence shall be done or committed.” The express provision that no, one should be punished for an offense after the period for finding an indictment charging it bad elapsed, necessarily precluded a, conviction therefor. In People v. Burt, supra, the defendant was indicted and convicted of murder. The statute in Michigan! is very similar to ours. On appeal the Attorney-General confessed error in the reception, of evidence against the accused. The court found that in no view of the case could the killing be regarded as more than, manslaughter, and discharged the defendant (p. 203) “inasmuch as, if respondent had been indicted for manslaughter, the prosecution would have been outlawed;” and it was thought that he should not, therefore, be subjected to another trial. The precise point now under consideration was accordingly decided only infer-en,tially, if at all.

This brief reference to the conflicting decision® upon, the subject is made because, as has been said, it involves the only point argued upon the appeal; but We do not feel called npon to- decide the question in this ease inasmuch as it does not appear to have been properly raised in the court below. The evidence has not been returned, in full, but only so much of it as the parties have considered necessary for the purposes of the point stated, together with an agreed statement of facte. The point could only be raised by proof upon the trial under the plea, of not guilty, People v. Durrin, 2 N. Y. Crim Rep. 328, and oases cited, and by some appropriate motion or request to charge. The agreed facts establish that the appellant was within the state and county during the fourteen years, of successful concealment of bis crime, so that an indictment for manslaughter could have been found and prosecuted within the five years, hut no request was made to the learned county judge to charge the jury that, therefore, a conviction could not he had for manslaughter. A motion was made on behalf of the appellant which appears in the case in this form: “At the close of the whole case and before the judge’s charge, the defendant’s counsel moved that the prisoner he discharged upon the ground that he could not bei convicted as charged, for the reason that owing' to the lapse of time he could not he convicted of manslaughter.” This motion was denied, and very properly so-. The appellant was not entitled to a discharge in any vieiw. The indictment contained but a single charge;, viz., that of murder in the second degree, and conceding’ that the appellant could not he convicted of manslaughter owing to the lapis© of time, itl would not follow that he could not bei convicted “as charged.”

The ease further contain® the following: “After the finding of thei verdict, thei defendant’s counsel moved that on the indictment, on the evidence, the certificate of conviction, and upon thei wholei record of the case, the defendant he discharged upon the ground that the Statute of Limitations Was a bar tlo any prosecution for the oídme of manslaughter.

“And upon the same grounds in arrest of conviction and of the judgment to be entered thereon.”

This motion was properly denied. It is to> he observed that no objection was made to the reception of the verdict and no request made that the jury he instructed even then that such a verdict was improper. The appellant having voluntarily taken advantage of the verdict., was certainly not entitled to he discharged on an arrest of judgment unless it appears that there was not sufficient evidence to convict him of any crime. Code Criminal Procedure, section 470. But thei question that the offense of which the accused has been convicted is barred by the Statute of Limitations., is not presented on a motion in- arrest of judgment. By section 467 of the Code of Criminal Procedure it is provided that that motion may be founded on any of the defects in the indictment mentioned in section 331. Section 331 relates to but two defects: First. Want of jurisdiction in the court over the subject of the 'indictment, and, second, that the facts stated do- not constitute a crime, and these objections, it is provided, may be taken at the trial, under the plea of not guilty and in arrest of judgment. In People v. Buddensieck, 103 N. Y. 487, it was held that these two objections only axe available upon a motion in- arrest of judgment. If, however, on such motion all the grounds of demurrer mentioned in section 323 of the Code of Criminal Procedure are to be deemed included, the result will be the same. People v. Menken, 36 Hun, 90-99. Clearly the indictment in this case is not demurrable. It charges a crime committed within the jurisdiction and one which is never barred by time.

The judgment should be affirmed.

All concurred, Woodward and Sewell, JJ., however, expressing no opinion on the point discussed by Jenks, J.

Jenks, J. (concurring)

I concur with Mr. Justice Hirschberg that the question presented was not raised at the trial. I think that if it had been raised the judgment must be reversed.

The defendant is convicted of manslaughter in the second degree. Section 142 of the Code of Criminal Procedure forbids an indictment for that felony for the reason that five years had elapsed since the crime was committed. As this crime must be prosecuted by indictment (Id. section 4) section 142 is a bar to a trial for the offense. But it is insisted that because the defendant was convicted of manslaughter on Ms trial of Ms indictment for murder in the second degree, Ms conviction is valid maugre the statute. Necessarily, this contention is founded upon the construction that the statute does not prohibit! a conviction for manslaughter, but simply an indictment (and consequently a tidal) for the specific crime of manslaughter. In. other words, there cannot be direct accusation and trial for the crime because five years have elapsed, hut this flight of time, which is deemed a proper limitation upon direct proceeding, should not he held a bar provided the conviction result upon the trial of 'an indictment (an accusation) for murder in the second degree. I can see no good reason for the distinction. Why should the state enact a statute of limitations upon direct procedure, and thereby afford immunity for a crime, and yet permit punishment for the same crime hy the indirect procedure of an accusation of a different crime? I cam see no reason in the public policy that permits punishment for a crime when, proven upon the trial of an indictment for a different crime, and yet prohibits punishment for that crime when sought hy a direct indictment therefor. “The letter killeth where the spirit giveth life.”

The fact that manslaughter is a degree of homicide does not change -the character of the offense, or afford any reason that it should he punished that does not obtain when we term it manslaughter. The fact that a grand jury upon the evidence presented deems that the act constitutes murder*, so> as to warrant such accusation, adds nothing to' the gravity of the act which the verdict of the petit jury determines as manslaughter, of which crime alone the defendant is convicted. Whatever the trial be^ whether for murder o-r for manslaughter, the verdict decides that the crime is manslaughter and nothing more. The crime, as I have said, must be tried hy indictment. Code Criminal Procedure, section 4. Though the indictment found was for the commission of a certain act under circumstances which are charged to' constitute murder in the second degree, yet as that very act is determined by the trial to. constitute hut manslaughter in the second degree, I think that the indictment upon which the defendant was tried may he regarded as an indictment for the offense of which the defendant was convicted to the extent that it should he held within the purview of the said section 142 of the Code of Criminal Procedure. In other words, I think that the fair interpretation, of the statute prohibits conviction for the felony of manslaughter iu the second degree in this case.

Statutes of limitation in the criminal law are not subject to' the strict construction that obtains in the civil law. Hr. Wharton in his work on Criminal Pleading and Practice states the principle of construction as follows (section 316) : “We should at first observe that a mistake is sometimes made in applying to statutes of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different!. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute-, therefore, there is no- intendment to he made in favor of either party. Eeither grants the right to the other; there is, therefore, no- grantor against whom the ordinary presumptions of construction are to be made. Put it is otherwise when a statute of limitation is granted by the state. Here the state is the grantor, surrendering by act of grace its right to prosecute-, and declaring the offence to- he no longer the sub j eot of prosecution. The statute is not a statute of process, tío he scantily and grudgingly applied, but an amnesty declaring that after a certain time oblivion shall he east over the offence; that the offender shall he at liberty to return to his country and resume his immunities as a citizen; and that from henceforth he may cease to- preserve the proofs of his innocence, for the proofs of his guilt are blo-tted out. Hence it is that statutes of limitation are to- he- liberally construed in favor of the defendant, not only because such liberality of construction belongs toi all acts of amnesy and grace, hut because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs o-f guil-t!. Independently of these views it must be remembered that delay in instituting prosecutions is not only productive of expense to the state, bub of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself to exact vigilant activity from its subalterns, and to' secure for criminal trials the best evidence that can be obtained.” See, too, People v. Lord, 12 Hun, 282.

Mr. Bishop, in his work on Statutory Crimes (3d ed., section 261d), says: “There are decisions not requiring special consideration, as to what offenses are within the varying terms of our limitations statutes'. How—Offenses within one another. —In those oases in whch a, conviction for a, minor offense may be bad on an indictment for a. major, the same as in any other, the particular one for which the verdict is found must not be barred by the statute.” People v. Picetti, 124 Cal. 361; Rigg;s v. State of Mississippi, 30 Miss. 635; White v. State, 4 Tex. App. 488, citing State v. Freeman, 17 La. Ann. 69; Turley v. State, 3 Heisk. 11; Nelson v. State of Florida, 17 Fla. 195; Commonwealth v. Ruffner, 28 Penn. St. 259.

I think that as upon any construction of this statute it, is at least a bar to trial, conviction and punishment upon an indictment for the specific felony, in that it prohibits indictment, which is the sole procedure authorized (Code Criminal Procedure, section 4), the fact that in any of the cases cited the statute considered prohibited punishment does not affect the force of its authority upon the general principle. I think that the decision of the Oyer and Terminer in People v. Dowling, 1 N. Y. Crim. Rep. 530, should not be followed. The learned justice who wrote, after stating that- the position taken by the prisoners’ counsel “may seem to be within the equity of the statute,” thought that he was bound to follow the strict language thereof. He pointed out that with the statute stood the other statute that upon a,n indictment for any offense consisting of different degrees, the jury may find the accused guilty of any such offense inferior to. that charged. But even so^ both statutes could stand and be effective, for where five years had not intervened the commission of the crime and the indictment, then the latter statute might still apply—its application is but limited. Clark v. State of Georgia, 12 Ga. 350, mentioned ini the opinion of Mr. Justice Hibschbeeg, and also cited as authority in People v. Dowling, supra, is chacterized by Mr. Wharton (Crim. Pl. & Pr., note to section 323) as “ a remarkable case,” which I take to be an expression of doubt of the soundness of the doctrine, inasmuch as the facts are commonplace.

Judgment of conviction affirmed.  