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they are to operate.30 The time may be fixed arbitrarily,31 and may be changed in respect to offenses not already barred.32 And the period prescribed for prosecuting a particular crime may be less than that allowed for prosecuting minor degrees of the same offense, or assaults with intent to commit it.38

Generally statutes of limitation will be construed liberally in favor of the defendant,34 unless the statute itself prescribes a different rule.35 Exceptions to the statute cannot be enlarged beyond the plain import of the language used, and to render such an exception applicable the case must clearly and unequivocably fall within it.36 A specific limitation prescribed by the statute creating an offense will govern prosecutions under it rather than a general statute applicable to offenses of the class to which it belongs.37 A limitation expressly restricted to a particular crime will not apply to minor degrees of that crime, such as an assault with intent to commit it, since the particular enumeration excludes offenses not enumerated.38 A statute which is general in its terms will apply to crimes created after its enactment.39

Whether a particular prosecution is barred is a mixed question of

30 Moore v. State, 20 Tex. App. 275. 31 Moore v. State, 20 Tex. App. 275. 32 See § 195, infra.

33 Moore v. State, 20 Tex. App. 275. 34 Florida. Nelson v. State, 17 Fla. 195.

Illinois. Lamkin v. People, 94 Ill. 501; Beattie v. People, 33 Ill. App. 651.

Missouri. State v. Colvin, 284 Mo. 195, 223 S. W. 585; State v. Snyder, 182 Mo. 462, 82 S. W. 12.

New York. People v. Lord, 12 Hun 282.

Oklahoma, State v. Fulkerson, 16 Okla. Cr. 250, 182 Pac. 725.

Texas. State v. Asbury, 26 Tex. 82; White v. State, 4 Tex. App. 488. West Virginia. State v. Locke, 73 W. Va. 713, 81 S. E. 401; State v. Beasley, 21 W. Va. 777.

They are to be given a reasonably strict construction. State v. Heller, 76 Wis. 517, 45 N. W. 307.

35 It is sometimes provided that the

statutes in relation to certain offenses shall be construed as remedial and not penal, in which case they will be construed liberally so as to advance the purpose intended. State v. Beasley, 21 W. Va. 777.

36 State v. Clemens, 40 Mont. 567, 107 Pac. 896.

37 A statute making certain acts misdemeanors and prescribing the period within which prosecutions therefor must be instituted governs in determining whether such a prosecution is barred rather than the statute of limitations applicable to misdemeanors generally. Quillin v. Com., 105 Va. 874, 54 S. E. 333, 8 Ann. Cas. 818.

38 Moore v. State, 20 Tex. App. 275. 39 The federal statute relative to misdemeanors applies to misdemeanors added to the list of statutory crimes after its enactment. United States v. Central Vermont Ry., 157 Fed. 291.

law and fact, and is usually one for the jury where the evidence as to the facts is conflicting.40

§ 194. Computation of time. Generally in computing the time the day on which the offense was committed will be excluded and the last day of the prescribed period will be included, and this is the rule by statute in some jurisdictions.42 But some of the courts include both days, under the rule that criminal statutes and proceedings must be construed strictly against the prosecution and in favor of the accused.48 Statutes sometimes require that both days be excluded, and both will be excluded where the statute specially requires a given number of entire days to intervene.45 Sundays are included in the absence of a statutory provision to the contrary.46 "Fractions of days are not regarded in law except where justice requires a careful examination as to the precise time of the day at which an act was performed in order to do right as between parties." 47

At common law the word "months" in a statute is construed to mean lunar instead of calendar months unless the statute otherwise provides.48

§ 195. Effect of change in statutory period. A statute enlarging the statutory period may be made to apply to offenses previously

40 In re Clyne, 52 Kan. 441, 35 Pac. 23; State v. West, 105 La. 639, 30 So. 119; State v. Victor, 36 La. Ann, 978; State v. Cason, 28 La. Ann. 40.

It is for the jury to determine whether the offense was committed within the statutory period, Baschleben v. People, 188 Ill. 261, 58 N. E. 946; and whether the defendant was a fugitive from justice so as to stop the running of the statute. Greene v. United States, 154 Fed. 401, aff'g 146 Fed. 803, certiorari denied 207 U. S. 596, 52 L. Ed. 357, 28 Sup. Ct. 261 (mem. dec.); Porter v. United States, 91 Fed. 494; State v. Miller, 188 Mo. 370, 87 S. W. 484.

41 Savage v. State, 18 Fla. 970; Com. v. Wood, 17 Pa. Co. Ct. 133, 5 Pa. Dist. Rep. 179. And see People v. New York Cent. R. Co., 28 Barb.

(N. Y.) 284; State v. Beasley, 21 W. Va. 777.

42 State v. Smith, 162 Iowa 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834; State v. Beasley, 21 W. Va. 777.

43 McLendon v. State, 14 Ga. App. 274, 80 S. E. 692; State v. Asbury, 26 Tex. 82.

As to the rule of strict construction, see § 66, supra.

44 2 Vernon's Crim. Stat. Texas, 1916, art. 230.

45 See State v. Beasley, 21 W. Va. 777.

46 McLendon v. State, 14 Ga. App. 274, 80 S. E. 692.

47 Savage v. State, 18 Fla. 970. 48 This construction was given to a statute of limitations in an early Delaware case. State v. Jacobs, 2 Harr. (Del.) 548.

committed provided they are not barred at the time of its enactment. But such a statute cannot operate to revive a right of action already barred.49 As a rule statutes extending the time will not be held to apply to offenses committed before their passage, unless the intention to give them a retroactive effect is clearly manifested in the acts themselves or is necessarily to be inferred from them.50

It is sometimes specifically provided that the repeal of a statute of limitations shall not operate to stop the running of limitations as against offenses previously committed, but that the time shall be construed as if such repeal had not been made.51

§ 196. Effect of conviction of lesser offense than that charged. According to the weight of authority, a conviction of a lesser offense included in the offense charged cannot be sustained if the lesser offense is barred, although the statute has not run against the offense charged.52 But in at least one state it is held that the statute applicable under such circumstances is that which relates to the offense charged in the indictment rather than that of which the defendant may be convicted, and hence that where the offense charged is not barred a conviction of a lesser offense will be sustained, although the statute has run against it.53 In Louisiana the matter is to some extent regulated by statute.54

49 See § 52, supra.

50 People v. Lord, 12 Hun (N. Y.) 282; Martin v. State, 24 Tex. 61.

51 Garrison v. People, 87 Ill. 96. 52 Alabama. Letcher v. State, 159 Ala. 59, 48 So. 805, 17 Ann. Cas. 716.

California. People v. Picetti, 124 Cal. 361, 57 Pac. 156; People v. Miller, 12 Cal. 291; People v. Meyers, 39 Cal. App. 244, 178 Pac. 965.

Florida. Nelson v. State, 17 Fla.

195.

Michigan. People v. Burt. 51 Mich. 199, 16 N. W. 378.

Mississippi. Riggs v. State, 30 Miss. 635; Heward v. State, 13 Smedes & M. 261.

New York. People v. Di Pasquale, 161 App. Div. 196, 146 N. Y. Supp.

523..

Tennessee. Hickey v. State, 131 Tenn. 112, 174 S. W. 269; Turley v.

State, 3 Heisk. 11; State v. Bowling, 10 Humph. 52; Wilson v. State, 7 Yerg. 516.

Texas. White v. State, 4 Tex. App. 488; Fulcher v. State, 33 Tex. Cr. 22, 24 S. W. 292.

53 Jinks v. State, 114 Ga. 430, 40 S. E. 320; Wall v. State, 75 Ga. 474; Clark v. State, 12 Ga. 350; Sikes v. State, 20 Ga. App. 80, 92 S. E. 553; Troup v. State, 17 Ga. App. 387, 87

S. E. 157.

54 The crimes of wilful murder, arson, robbery, forgery and counterfeiting are expressly excepted from the operation of the statute of limitations, and it is provided by the statute that the prescriptions provided for in the case of other crimes, and the prescribed exemptions therefrom, shall not apply to any conviction for a lesser crime or offense under an

§ 197. When statute commences to run-In general. The statute of limitations commences to run from the date of the commission of the crime 55 unless some other time is expressly provided.56 So in homicide the statute runs from the date of the death of the person killed, rather than from the date when the mortal wound was given,57 in perjury from the date when the false testimony was given,58 and in forgery from the date of the actual commission of the forgery, rather than from the date appearing on the forged instrument.59 And it runs against the offense of receiving stolen property from the date when the property is received,60 and against the offense of receiving a bribe from the date of the actual receipt of the money, rather than from the date when the agreement under which it was paid was made, or the date when the action sought to be influenced was taken.61

indictment for any of the crimes above enumerated, and that said prescription or exemption shall not be pleaded against said lesser offense. Marr's Ann. Rev. St. 1915, § 2225 (Rev. St. § 986); State v. Bell, 48 La. Ann. 735, 19 So. 671.

The statute does not apply to a case where the defendant is indicted for shooting with intent to murder and is convicted of shooting with intent to kill. State v. Anderson, 51 La. Ann. 1181, 25 So. 990.

Before the adoption of this statute it was held that a conviction could not be sustained if the lesser offense was barred. State v. Morrison, 31 La. Ann. 211; State v. Baker, 30 La. Ann. 1134.

55 State v. Langdon, 159 Ind. 377, 65 N. E. 1; State v. Colvin, 284 Mo. 195, 223 S. W. 585.

56 See §§ 198-206, infra.

57 United States v. Hewecker, 79 Fed. 59; Reynolds v. State, 1 Ga. 222; State v. Taylor, 31 La. Ann. 851.

58 Where the false testimony is alleged to have been given during the trial of a criminal case the statute runs from the date when such testimony is alleged to have been given and not from the date of the offense

giving rise to the trial during which it was given. Waddle v. State, 73 Tex. Cr. 501, 165 S. W. 591.

59 People v. McPherson, 6 Cal. App. 266, 91 Pac. 1098.

60 Jones v. State, 14 Ind. 346. 61 If the money is received within the statutory period, the prosecution is not barred although the agreement was made and the action taken more than the statutory period before the indictment was found. People v. Gibson, 191 N. Y. 227, 83 N. E. 976, 123 Am. St. Rep. 597, aff'g 122 App. Div. 69, 106 N. Y. Supp. 590.

On a prosecution under a statute making it an offense for a member of congress to receive or agree to receive any money, property, or other valuable consideration for procuring or aiding to procure a government contract for any person, it was held that limitations did not commence to run from the date of the execution of a non-negotiable note in favor of the defendant by a person for whom he had procured a government contract whereby he agreed to pay the defendant a certain sum out of the proceeds of said contract, since said note was void, but rather from the dates of payments subsequently made

§ 198. Continuing offenses. In the case of continuing offenses, the statute does not run so long as the acts or conditions made criminal continue. This is true, for example, of the offenses of maintaining a nuisance, 62 obstructing a public road,63 knowingly occupying land under a forged title,64 violations of anti-trust laws, 65 cohabiting under a bigamous marriage,66 and, under some of the statutes, of the offense of abandoning and failing or neglecting to provide for one's wife or children.67 But a completed offense cannot be continued so as to toll the running of the statute,68 nor will the mere continuance of the result of the crime continue the crime so as to prevent the running of the statute.69 So the crime of wrongfully withholding pension. money is completed by the wrongful refusal of the person collecting the money to pay the same over to the person entitled thereto on demand, and the offense does not become a continuing one because the defendant continues to retain the money after such demand and refusal.70 And the same rule applies on prosecution of a bankrupt for concealing assets from his trustee. Mere silence and passivity of the defendant after the alleged concealment does not make the crime a

to the defendant thereunder. United States v. Driggs, 125 Fed. 520.

62 State v. Poyner, 134 N. C. 609, 46 S. E. 500; State v. Holman, 104 N. C. 861, 10 S. E. 758.

63 The prosecution is not barred where the obstruction is continued to a time within the statutory period, though it was created more than that period before the finding of the indictment. State v. Gilbert, 73 Mo. 20; State v. Long, 94 N. C. 896; Nashville & D. R. R. v. State, 1 Baxt. (Tenn.) 55; State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447.

64 The prosecution is not barred if it is instituted while the accused so occupies the land, or within the statutory period after such occupancy has been abandoned, although more than the statutory period has elapsed since he went into possession. Coker v. State, 115 Ga. 210, 41 S. E. 684.

65 It is not necessary to show that the unlawful combination was entered into within the statutory period be

fore the finding of the indictment, but
it is sufficient to show that it was
in existence within that time. Inter-
national Harvester Co. of America v.
Com., 144 Ky. 403, 138 S. W. 248.
66 See $201, infra.

67 See § 201, infra.

68 Com. v. Bartilson, 85 Pa. St. 482; Gise v. Com., 81 Pa. St. 428.

69 United States v. Kissel, 218 U. S. 601, 54 L. Ed. 1168, 31 Sup. Ct. 124, rev'g judgment 173 Fed. 823; Meyer v. United States, 220 Fed. 800; Warren v. United States, 199 Fed. 753, 43 L. R. A. (N. S.) 278; United States v. Phillips, 196 Fed. 574.

70 United States v. Irvine, 98 U. S. 450, 25 L. Ed. 193.

"Whenever the act or series of acts necessary to constitute a criminal withholding of the money have transpired, the crime is complete, and from that day the statute of limitations begins to run against the prosecution." United States v. Irvine, 98 U. S. 450, 25 L. Ed. 193.

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