Swalley v. People , 116 Ill. 247 ( 1886 )

Mr. Justice Sheldon

delivered the opinion of the Court:

In this case John Swalley and Daniel Overstreet were convicted of the crime of burglary. The only question which is presented is upon the statute of limitation of three years. The crime was committed in the month of August, 1881. The indictment was found at the February term of court, 1885, and charged that John Swalley and Daniel Overstreet, on the second day of February, 1885, at the county of Sangamon, in this State, a certain building, the same being a certain office of John Morris, Patrick Harris and Hannah E. Hutton, partners, as Morris, Harris & Co., did burglariously break and enter, etc.

To avoid the bar of the Statute of Limitations, the People introduced in evidence an indictment found at the May term, 1884, of the court, which charged that John Swalley, Daniel Overstreet, James Arnold and Richard Mines, on the first day of May, 1884, at the county of Sangamon, in this State, a certain building, - the same being a certain mill of John Morris, Patrick Harris and Hannah F. Hutton, partners, as Morris, Harris & Co., did burglariously break and enter, etc. At the October term of the court, 1884, the State’s attorney entered a nolle prosequi to that indictment, and the court ordered that the defendants therein be discharged, which was done on December 29, 1884, and the People made proof, by the testimony of witnesses, that the offences charged in the two indictments were one and the same offence. This proof was made against the objection of the defendants that the question of the identity of the offence charged in the two indictments could only be determined by an inspection and comparison of the indictments, without the aid of extraneous circumstances. Durham v. The People, 4 Scam. 172, is referred to by defendants’ counsel as sustaining the objection. This is evidently a misapprehension of that decision. That was a case of demurrer to a plea of a former acquittal, and it was said the question whether the indictments were for the same offence must be determined by an inspection of the indictments, as nothing but the facts appearing from the record were pleaded. That does not conflict with the rule that the identity of the offence may be -shown by parol evidence. 3 Greenleaf on Evidence, sec. 36; Wharton on Crim. Pl. & Pr. sec. 481.

Section 318 (Rev. Stat. 1874, ch. 38,) of the Criminal Code is as follows: “Where an indictment, information or suit is quashed, or the proceedings on the same are set aside or reversed on writ of error, the time during the pending of such indictment, information. or suit so quashed, set aside or reversed shall not be reckoned within the time limited by this act, so as to bar any new indictment, information or suit for the same offence.” If the time of the pendency of the first indictment be excluded, the three years’ limitation had not run, and the bar of the statute had not accrued at the time of the finding of the second indictment. Whether the time during which the first indictment was pending is not to he reckoned, depends upon whether the proceedings on the first indictment were “set aside, ” within the meaning of the section above cited. The section names three modes of. disposition of the indictment: quashing it, reversal of the proceedings thereon on error, and setting aside the'proceedings on it. The first two are specific’ modes, the last is general. To “set aside” is very broad in scope,—“to defeat the effect or operation of;” and we think it may well be held to embrace .here every other mode of defeat of the proceedings on an indictment, than quashing it and reversal on error, and so, that the manner of disposal of the first indictment amounted to a setting aside of the proceedings under it, and came within the saving-clause of the section.

The judgment will be affirmed.

Judgment affirmed.