State v. Tupa , 194 Minn. 488 ( 1935 )

The question is one of criminal procedure, and I object to a rule which requires the courts to discharge a defendant and protect him from the appropriate punishment after his own formal plea of guilty, especially where he has had competent counsel. If, later, the executive power sees fit to exercise the power of pardon, the question will be one with which judges have no concern.

Where no local law prevents, and in the interests of uniformity, if for no other reason, my own view is that we should follow the rule of the Supreme Court of the United States. Such a rule, declared in United States v. Cook, 17 Wall. 168, 179, 21 L. ed. 538, is that where no special plea is open to the accused (and none is with us, State v. Kiewel, 166 Minn. 302, 207 N.W. 646), the defense of a statute of limitations must be made under the general issue. The court said [17 Wall. 179]:

"Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecutor of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception."

There is no question here but that every element of the offense was properly charged by the information. Whether defendant was entitled to the benefit of the statute of limitations depended upon disclosures to be made by evidence. It being matter of defense, the burden of proof was upon him. It is not a question, I submit, of what the rule is in civil cases. Without further exploration of the analogy, if any, my submission on that point is simply that, even in a civil case, if after a defendant's demurrer is overruled he withdraws all defenses and confesses judgment, there is an end of the matter finally adverse to him. For these reasons I dissent.