Clayton v. State , 122 Ala. 91 ( 1898 )

DOWDELL, J.

— As stated by council, the only question presented in the record is, whether the prosecution was barred by the statute of limitations. The offense charged — assault with intent to murder — is a felony, and under tlie statute the prosecution is barred unless commenced within three years nest after the commission of the offense. In this case the offense was shown to have been committed on the 24th day of December, 1895. The record states that a warrant was issued by one Martin, a justice of the peace, on the affidavit of William Gf. Oliver, the assaulted party, about three months after the commission of the alleged offense; that said warrant was placed in the hands of the constable, but the defendant was never arrested under that warrant, having fled the country; that on the 16th day of December, 1898, the same justice of the peace, Martin, learning that defendant had returned to Jefferson county, issued an alias warrant without any further affidavit; that this warrant was placed in the hands of the constable, and the defendant, on the said 16th day of December, the day of its issuance, was arrested and had his preliminary trial and was bound over to the grand jury about the middle of January, 1899. The indictment was found on the first day of February, 1899. It is obvious, therefore, that the bar .was complete by reason of the lapse of more than three years since the commission of the offense to the finding of the indictment, unless the proceedings had before the justice operated to suspend the statute and take the prosecution out of the bar.

Section 5074 of the Criminal Code provides: “A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant, or by binding over the offender.” No question is raised as to the fact of the issuance of the warrant within the time stated above, but it is objected by the defendant that there was no authority of law for the issuance of the alias warrant upon which he was arrested. The evidence showed that the original affidavit and warrant had been lost and could not lie found after diligent search. Under these facts, we have no doubt of the authority and power of the officer who issued the original warrant, and before whom the affidavit was made, to issue the alias warrant as was done in this case. The contention of the defendant that a gap or chasm had been created in the prosecution, we think is untenable. There is no provision or requirement in the statute, in proceedings of this character, for preserving a continuation of a prosecution thus begun, by a return of the writ and a re-issuance of alias writs, at stated periods. The execution of the original warrant was prevented by the flight of the defendant. The running of the statute was suspended by the issuance of the original warrant. The defendant was indicted for the identical offense for which the warrant was sworn out, and we think there can be no doubt, under the facts as stated in the record, that the continuity of the prosecution so begun was preserved, and no gap or chasm was thereby created. The several written charges requested by the defendant which presented this question, that is, of the bar of the statute of limitations, were properly refused.

The judgment of the circuit court must be affirmed,