Travis, William L.

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Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 7 | Issue 4 Article 51-1932Effect of Amendment Extending Period ofProsecution of Criminal ActionsWilliam L. TravisMember, Hammond BarFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Criminal Law Commons, and the Criminal Procedure CommonsThis Article is brought to you for free and open access by the Law SchoolJournals at Digital Repository @ Maurer Law. It has been accepted forinclusion in Indiana Law Journal by an authorized administrator of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationTravis, William L. (1932) "Effect of Amendment Extending Period of Prosecution of Criminal Actions," Indiana Law Journal: Vol. 7:Iss. 4, Article 5.Available at: http://www.repository.law.indiana.edu/ilj/vol7/iss4/5EFFECT OF AMENDMENT EXTENDING PERIODOF PROSECUTION OF CRIMINAL ACTIONSBy WILLIAM L. TRAvIS*The enactment of Sec. 2052 Burns' Supplement, 1929, amend-ing our former criminal limitations act by extending the timefor commencement of prosecutions for felonies from two tofive years has created a situation pregnant with uncertainty asto the effect which such amendment has on offenses committtedprior to its passage.Since the amending act changing the limitation period failsto declare whether it should apply to past offenses a grave ques-tion has arisen as to its effect. In the last analysis the questionresolves itself into an inquiry to determine the extent of powerreposed in the Legislature to enact, repeal or change limitationacts, and, secondly, to discover what construction ought to beplaced on such an act where the intent of the lawmaker is notmade apparent by the act itself.POWER OF THE STATEThe power of the State to prosecute at will is restricted bythe Legislature by the establishment of periods of limitation.While the power to enact such statutes in the first instance isunlimited, yet, after the exercise of its power to prescribe pe-riods of limitation, it circumscribes its power thereafter tochange or repeal the original act. Before the full statutoryperiod has expired the limitation is a mere regulation of theremedy subject to legislative control and it is generally concededthat the Legislature has power to alter, repeal, or extend theprovisions of the original statute, and may by clearly expressedintention make the statute operate retrospectively, without vio-lating any constitutional rights of the accused.'It has been intimated that the Legislature has power to re-vive a crime previously barred and punish the offender there-* Of the Hammond Bar.'Rex v. Dharma, 2 K. B. 335; Com. v. Duffy, 96 Pa. 506; State V.Sneed, 25 Tex. Supp. 66; Wood, Limitation of Actions, Sec. 13; 12 C. J.1103; Brill, Cyc. Crim. Law, Vol. 1, Sec. 195.EFFECT OF AMENDMENTfor.2 But by the great weight of authority and better reason, itis now well nigh the universal rule that after the lapse of thestatutory period the State has no power to revive its right toprosecute.3 Some authorities base the rule upon the grounds ofpublic policy;4 others assign the prohibition against Ex PostFacto laws as the basis for the rule.5 Wood, in his treatment ofthe subject, expresses the opinion that perhaps the offendercannot be said to have a vested right to his freedom by thestatutory lapse of time but that the State by its neglect to prose-cute can be treated as having condoned the crime so that it isestopped from prosecuting.8 Judge Dixon, in a well consideredopinion 7 states the Ex Post Facto theory so ably that we quotehim at length:"The inalienable right to life and liberty is suspended during theperiod within which the statute has to run; thereafter his title to libertyand life becomes absolute and cannot be taken away under the constitu-tional guaranty of the right to life and liberty * * * . After it has runit is a defense not of grace, but of right, not contingent, but absolute andvested, and like other defenses, not to be taken away by legislative enact-ment * * *. The sanction of the law was dead and the Act of 1879,restoring the expired law is within the spirit of the Ex Post Facto pro-hibition and void."The impolicy of keeping crimes, not of the deepest dye, punishableduring the whole life of the offender, is sufficiently indicated by the com-mon usage of civilized nations in fixing a period for the limitation ofcriminal prosecutions. The beneficent aims of such a usage are thwartedif the limitation be not absolute and irrevocable. The injustice and op-pression of laws repealing the limitation, after persons have once reliedupon its finality, must be apparent to all. The innocent, conscious of acts,which when only partly disclosed may seem criminal, preserve the evidenceof the whole truth until time has established the legal proof of innocenceby barring prosecution. Then their vigilance relaxes and their evidence islost. What more unjust than that now the Legislature should abate their2 Bishop, Statutory Crimes, See. 266.3 Moore v. State, 43 N. J. Law 203, 39 Am. Rep. 558; Peo. v. Lord,12 Hun. 282; Martin v. State, 24 Tex. 61; State v. Sneed, 25 Tex. Supp.66; Thompson v. State, 54 Miss. 740; Dinkerlocker v. Marsh, 75 Ind. 548(dicta); Clark & Marshall, The Law of Crimes (2nd Ed.), Sec. 44; Wood,Limitation of Actions, p. 33; Brill, Cyc. Crim. Law, Vol. 1, Sec. 195;Wharton, Crim. Plead. & Pract., Sec. 316; 12 C. J. 222, 1103.4 Moore v. State (supra); Wood, Limitations (4th Ed.), Vol. 1, Sec. 13.5 Peo. v. Lord (supra); Thompson v. State (supra); State v. Sneed(supra); Wharton, Crim. Plead. & Pract. Sec. 316; 12 C. J. 1103.0 Wood, Limitations (4th Ed.), Vol. 1, Sec. 13.7 Moore v. State (supra).INDIANA LAW JOURNALprotection and leave them to the hazard of half-discovered facts? Aguilty man, not wholly lost to honor and hope, passes through the statutoryperiod after his single offense, cowed by the constant dread of detectionand disgrace. Then, relieved from danger, he returns to the path of recti-tude, forms respectable associations, and gathers around him those whorepose in his virtue and depend upon his fair name. Now the law changes,the detective drags to light his long-buried crime; and innocent and guiltyalike are overwhelmed in the common ruin. It was of grace that remissionwas granted; it is the spirit of injustice and oppression that withdraws it."From the foregoing review it may readily be concluded thatour statute cannot apply to offenses against which the bar ofthe old statute had run at time of its enactment.It was argued in the Duffy 8 case that the Legislature had nopower to extend the limitation period for offenses against whichthe full statutory time had not run, because it would alter therules of evidence and make less or different testimony than thelaw required at the time of the commission of the offense suffi-cient to convict the accused. If the burden was upon the Stateto show, in the one instance, that the alleged offense was com-mitted less than two years prior to the commencement of prose-cution, and, if the statute is changed and the State is then onlyrequired to prove that the offense was committed less than fiveyears before the prosecution was commenced, it was argued thatthe State would be able to convict upon less and different testi-mony than the law required at the time of the commission of theoffense, thus violating the Ex Post Facto prohibition as definedby the United States Supreme Court.9 The court, however,answered the argument by saying that the extension of timegranted for prosecution changed the quantum but not the qualityof the evidence and did not therefore violate Article I of theUnited States Constitution. Other than the Duffy case, we findno case where this particular point has been raised.As we have pointed out, the State may amend a limitationstatute so as to extend the time for commencement of presecu-tion for offenses against which the full statutory time has notexpired, if the amendment clearly manifests the intent of theLegislature to make it operate retroactively. Nothing is indi-cated by our statute as to its application, so we are concernednot so much with a question of power as we are one of intent,to be determined by certain rules of statutory construction.s Com. v. Duffy, supra, N. 1.9 Calder v. Bull, 3 U. S. 386; Kring v. Missouri, 107 U. S. 221.EFFECT OF AMENDMENTII.CONSTRUCTION: PROSPECTIVE OR RETROACTIVE OPERATION?It is a fundamental rule in civil actions that statutes of limi-tation will not be given a retroactive effect unless it clearly ap-pears that the Legislature so intended.' 0 Likewise, it is a funda-mental rule of criminal jurisprudence that limitation statutesshould be liberally construed in favor of the accused and againstthe prosecution."Wharton 1 2 says:"A mistake is sometimes made in applying to statutes of limitation incriminal suits the construction that has been given to statutes of limitationin civil suits. The two classes of statutes, however, are essentially differ-ent. In civil suits the statute is interposed by the legislature as an im-partial arbiter between two contending parties. In the construction ofthe statute, therefore, there is no intendment to be made in favor of eitherparty. Neither grants the right to the other, and there is therefor noquestion as against whom the ordinary presumptions of construction areto be made."But it is otherwise when a statute of limitations is granted by theState. Here the State is the grantor surrendering, by act of grace, itsright to prosecute, and ordering the offense to be no longer the subject ofprosecution."The statute is not a process to be strictly and grudgingly applied, butan amity, declaring that after a certain time oblivion shall be cast over theoffense and that the offender shall be at liberty to return to his country,and that henceforth he may cease to preserve proofs of his innocence, forthe proofs of his guilt are blotted out. Hence it is that statutes of limita-lo Peo. v. Cohen, 245 N. Y. S. 419, 157 N. E. 515; Hickson v. Darlow,52 Law J., Ch. 454; Bedford v. Shilling, 4 Serg. & R. 400-408; Charles 'V.Lamberson, 1 Ga. 435; State u. Connell, 43 N. J. Law 106; Edelstein v.Carlisle, 33 Colo. 54, 78 P. 680; Trapnel v. Burton, 24 Ark. 371; Thompsonv. Alexander, 11 Ill. 54; Lewis v. Brackenridge, 1 Blackf. 220; Hopkins v.Jones, 22 Ind. 310; Nicklaus v. Conkling, 118 Ind. 289, 20 N. E. 797;Henderson v. State, 96 Ind. 437; Wood, Limitation of Actions, 33; 37 C. J.681; 16 C. J. 222; 36 C. J. 1212, 1213; 17 R. C. L. 682, Sec. 28.n Peo. v. Lord, 12 Hun. 282; State v. Snyder, 182 Mo. 468, 82 S. W.12; State v. Locke, 73 W. Va. 713, 81 S. E. 401, 403; State v. Heller, 76Wis. 517, 45 N. W. 307; Martin v. State, 24 Tex. 614; State v. Fulkerson,182 P. 725 (Okla.); Moore v. State, supra, N. 3; Wood, Limitation ofActions, Chap. 1, p. 28, Sec. 11; Wharton, Crim. Plead & Pract. (9th Ed.),Sec. 316; Bishop, Statutory Crimes (3rd Ed.), Sec. 259; Brill, Cyc. Crim.Law, Vol. 1, Sec. 195; 16 C. J. 222.12 Wharton, Crim. Plead. & Pract. (9th Ed.), Sec. 316.INDIANA LAW JOURNALtion are to be liberally construed in favor of defendants, not only becausesuch liberality of construction belongs to all acts of amity and grace, butbecause the very existence of the statute is a recognition and notificationby the legislature of the fact that time, while it gradually wears out proofsof innocence, has assigned to it a fixed and positive period in which itdestroys proofs of guilt."An exhaustive search discloses a paucity of cases whereinthe courts have actually decided whether an act such as our ownoperates retrospectively. In Pennsylvania1 3 and Texas 14 therule seems to be that where a statute of limitations is extended,a defendant, in whose favor the original statute had not fullyrun at the time of the change, may be prosecuted within thenewly established time, although the time of the old limitationperiod has expired at the commencement of prosecution. Onthe other hand, it is the rule in New York,15 and apparentlyfollowed in Oklahoma,1 6 that where no reference is made to pastoffenses, an extension of a limitation period only applies to thosecommitted subsequent to the change, thus applying the rule thatobtains in civil cases. The New York rule is supported not onlyby the better reason, but by all the finer traditions of the lawbecause a bare resolution in the mind of the Legislature withoutmanifesting itself in some audible manner ought never to begiven any consideration in arriving at the construction to beplaced upon its act. Furthermore, we must assume that if theycould have spoken in unequivocal terms and did not, their failureto do so should be taken as an indication that they did not in-tend to include that which was omitted. That few cases havebeen reported in which such a statute's retroactive operation hasbeen involved is probably due to the fact that trial courts andprosecutors have shared the opinion that a sense of justicecompelled them to resolve the ambiguity in favor of the accused.Moreover, in the course of practical events, there would be fewcases where the extension of time would be resorted to becausein modern times the State, as a rule, either moves swiftly toprosecute, or abandons the notion altogether.Since there are no records at the Indiana Legislative Refer-ence Bureau to enlighten us, we can only hazard a guess as to1 Com. v. Duffy, supra, N. 1.14 State v. Sneed, 251 Tex. Supp. 66.15 Peo. v. Lord, supra, N. 3.16 State v. Fulkerson, supra, N. 11.EFFECT OF AMENDMENTthe purpose of the legislators in changing the old law. At thattime a certain public official high in the ranks of his party reliedupon the old statute as a defense to a prosecution, and it musthave been impressed upon the Legislature that under the two-year statute, more than ample time was allowed a public servantduring his last two years to conceal the corruption of his firsttwo years in office, so that at the end of his four years term,he would be immune from prosecution by his successors in office.No one will question the wisdom of the five-year limitation pe-riod, but by the insertion of a few words, the Legislature mayhave saved us the apprehension which provoked us to undertakethis research to determine what should be done with the half-dissected body which they left on the operating table.CONCLUSIONWithout a Statute of Limitations a State has power to prose-cute at will. In the exercise of its good common sense it recog-nizes the wisdom of establishing a limitation period in orderto prod its public officers to strict application to duty, to freethe innocent from the oppression of false accusations, and toafford the guilty an opportunity to reform.When the State relinquishes its right, and establishes anarbitrary period of limitations declaring that after a certaintime the suspended sword of Damocles shall be lifted from thehead of the suspected citizen, it makes a solemn bargain withthe innocent as well as the guilty which it is morally bound toobserve. The State becomes burdened with a duty to commenceprosecution within a certain time, and as a corollary, the ac-cused has the right to be prosecuted within the same prescribedperiod; it cannot be otherwise, because there cannot be a dutywithout a corresponding right.If the State toys with its duty, becomes an Indian giver andcalls back unto itself that which it has given, how can such anexample impress upon the accused his moral duty to henceforthconduct himself in a manner above suspicion? What securitydoes he have that there remains a locus poenitentiae where hemay reform, if that period of repentance and redemption is sub-ject to removal farther and farther from his grasp? What hopedoes he have of reaching the goal of a new era, where bygonesare buried in the past and life may be begun anew? If the StateINDIANA LAW JOURNALmay once change the limitation period by extending the timefor commencement of prosecution, it is logical to presume thatbefore the extension of time has expired it may again extendthe time, then again and again, hounding the victim of itsviciousness to his grave. It would be evil enough for an uncon-scionable Legislature to break its solemn promise; but if theLegislature be not so bold as to run the gauntlet of criticismfor failure to keep its faith, then the judiciary ought not step inwhere the legislators feared to tread and supply by constructionwhat the latter chose to evade.Once the beneficent hands of grace have stretched forth togive remission from sin and erase the pains of oppression fromthe innocent, they ought never again be outstretched except toembrace the persecuted and the penitent recipients of theirfavor.In the light of the fundamental rules of statutory construc-tion, in the face of the silence of the Legislatures as to its pur-pose, and upon the basis of sound logic and the weight of author-ity, we submit that the Limitation Act of 1929 relating tocriminal offenses has no application to offenses committed beforeits enactment.PROGRAM MIDWINTER MEETING,JANUARY 16, 1932All sessions at Claypool Hotel, Indianapolis.MORNINGMeetings of committees on call of chairmen.Meeting Board of Managers, 10:00 A. M.AFERNOONAssociation convenes at 1:30 P. M.Reports of Committees:Membership.Jurisprudence and Law Reform.Legal Education.American Citizenship.Addresses: "Lest We Forget"--Hon. James A. Van OsdoI.Criminal Jurisprudence.Grievances.Legislation.Endowment of Law Journal.Illegal Practice of Law.Reorganization of Bar.(Order of these reports subject to rearrangement.)Miscellaneous Business.EVENINGBanquet at 6:30 P. M., in Riley Room.Speaker: Hon. Julius Henry Cohen, New York City.Subject: Illegal Practice of Law.Guests: Officers of Indiana Bankers' Association.Members are permitted to bring their banker friends astheir guests. Dinner tickets $1.50. Please notify secretarypromptly number of tickets.

Effect of Amendment Extending Period of Prosecution of  Criminal Actions

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Effect of Amendment Extending Period of Prosecution of Criminal Actions

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