Case 24 — Action by Commonwealth against Bob Elkins to Recover a Penalty for Violation of Local Option Law.

Sept. 25.

#### Commonwealth v. Elkins.

APPEAL FROM TODD CIRCUIT COURT.

Judgment fc® Defendant and Plaintiff Appeals.

Affirmed.

Penal Action — -Indictment—Dismissal—New Action — Limitation.

Held. 1. Statutes, 1890, section 1138, provides that an action of pro- ' ■ ceeding to recover a penally for violation of the criminal laws shall he commenced within one year after the right to such penalty accrues, and not thereafter. Criminal Code, section 159, makes it the duty of the circuit judge, on quashing an -indictment on' grounds specified in section 15S, to order the case resubmitted; and section ICO declares that unless a new indictment is found, by the next grand jury, the defendants shall be discharged unless-the court for causo shall otherwise order. .Held, that where an indictment for violation'of the local option law was dismissed, more .than a year after the commission of the offense without an order for resubmission, a subsequent civil taction brought to recover a penalty for the same offense wasi not a continuance of the -original proceeding, but a new action, and barred by limitations.

M. R. TODD, FOR APPELLANT. (C. J. PRATT, OF COUNSEL.)

Appellee was indicted on the 7th day of .December, 1901, charged with selling by retail spirituousl liquor to Sid Cherry, in the. town of Trenton, county of Todd, during the month of May or June, 1901.

On the 16th day of July, 1902, the court entered an torder. dismissing the indictment.

On the 10th day of November, 1902, -a ¡petition was filed in ths Todd Circuit Court in the name of the Commonwealth v. BobElkins, in which the Commonwealth sought to recover aigainst. Elkins the sum lof two hundred ($200) dollars and the cost of the action. The lower count sustained a demurrer to the petition and the 'Commonwealth appealed.

The question presented is whether or-not the -prosecution was barred by section 1188, Kentucky Statutes.

•The above section provides, in part: “Prosecutions . by the *304Commonwealth for felony, unless otherwise specially provided, shall not be barred by lapse of tima or any law of limitations. Prosecutions by the Commonwealth to recover a penality for a violation of any penal statute or law, and. an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penality accrued, and not after, unless a different time is allowed by the law imposing the penalty.”

We contend that the statute did -not run again-st the .prosecution by petition as long as the indictment was pending. The filing of the petition wasi a continuation- of the prosecution by indictment and was a matter of right vested in the Commonwealth to proceed -by petition.

The original action was brought within the time provided in the statute, and section 1138 of the Kentucky Statutes contemplates that the prosecution be brought within one year.

We oontend that this -section applies to the original prosecution and the indictment having been brought within the time prescribed, it was error upon the part of the lower count to susitain a demurrer to the petition.

We respectfully ask a reversal, with direction to the lower court to overrule the demurrer. 101 Ky., 195; 20 R., 1639.

■S. WALTON FORGT, attorney por appellee.

The only question presented in this case is whether or -not the alleged crime tor which this penal action was -brought was barred by-the Statute of Limitation. The petitioni filed by the Common-, [wealth’s attorney in this case shows that it was barred by Hie Statute of Limitation, and therefore the lower court did not err in. sustaining the demurrer filed by the defendant. Section 1138 of the Kentucky Statutes says: “Prosecutions by the Commonwealth to recover a penalty for a violation of any penal statute or law, and an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penalty accrued, and not after, unless a different time is allowed by the law imposing the penalty.” Moro than one year elapsed after the sale of the whisky complained of in this case and the filing of this penal action.

Appellee respectfully asks for an affirmance of the judgment in the court below.

Opinion or the court by

JUDGE SETTLE

Appirming.

Bj the petition in this case which was filed in the Todd circuit court on the 10th day of November, 1902, the appellant, Commonwealth of Kentucky, -sought to recover of the *305appellee the sum of §200 and the costs of the action as. a penalty under the statute for an alleged violation of the local option law,' which appellant is charged to have committed by selling spirituous liquor in the town of Trenton in May or June, 1901. The lower court sustained a demurrer to the petition upon the ground that the action was barred by limitation, and the only question presented for consideration by this appeal is whether or not the prosecution was barred by the statute of limitations. Section 1138 of the Kentucky Statutes of 1899 provides that : “Prosecutions by the Commonwealth for felony, unless otherwise especially provided, shall not be barred by lapse of time, or' any law of limitation. Prosecutions by the Commonwealth to recover a penalty for a violation of any penal statute or law, and an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penalty accrues, and not after, unless a different time is allowed by the law imposing the penalty.” It appears .from the averment of the petition that appellee was indicted on the 7th day of December, 1901, in the Todd circuit court, for the same offense for which the penalty is sought to be recovered against him in this case. The indictment was allowed to remain on the dockét without trial or other action until the 16th day of July, 1902, at which time an order was entered by the court dismissing it without a re-reference to the grand jury. It does not appear from the record that the appellee was ever before the court under the indictment. So, upon the face of the record, it is conclusively ■shown that more than a year elapsed between the commission of the offense by appellee and the date of the dismissal of the indictment, and the petition in this case was not filed *306until about four months after the dismissal of the indictment, and about seventeen months after the alleged commission of the offense. It js contended, however, by counsel for appellant, that limitation did not run against this action to recover the statutory penalty as long as the indictment was pending, and that the filing of the petition was but a continuation of the prosecution begun by indictment; in other words, that the time during which the indictment was. pending should be excluded from the statutory period within which the prosecution or action was required to be commenced. No authority is cited in the brief of counsel in support of this contention, and we apprehend that none can be found. In Commonwealth v. T. J. Megibben Co., 101 Ky., 195, 19 R., 201, 40 S. W., 694, a second indictment was returned against the defendant for maintaining a nuisance, which showed on its face that the offense charged was committed more than a year before the finding of the indictment', but, as the indictment contained the averment that, the offense therein charged was the same charged in the former indictment returned in the same court, it was contended for the prosecution that the second indictment was not barred by limitation, but should be regarded as a continuation of the prosecution set on foot by the first indictment; but this court held that a prosecution under the second indictment would not be regarded as a continuation of the former prosecution, so as to avoid the statute of limitations, as it was. not alleged in the second indictment that the other indictment had been quashed and the case re-referred to the grand jury, or dismissed by the Commonwealth’s attorney and re-referred. Consequently, a demurrer was sustained to the last indictment because of the bar interposed by the statute of limitations. To the same effect was the decision of this court in Tully v. Commonwealth, 13 Bush, 153, and of the. *307superior court in N. N. & M. V. R. Co. v. Commonwealth, 14 Ky. Law Rep., 197, and L. & N. R. R. Co. v. Commonwealth, *4*Ky. Law Rep., 627. In no case that we have been able to find has it been held in this State that, where a prosecution for an offense has been commenced by indictment, and the indictment dismissed without a re-reference to the grand jury, a second indictment for the same offense or action to recover the penalty denounced by statute against such an offense is to be regarded as a continuation of the former prosecution, even though such second indictment be found or action commenced within a year after the commission of the* offense ; and much less can it be so regarded if commenced more than a year from the date of its commission. If an indictment is quashed upon any of the grounds mentioned in section 158, Or. Code, section 159, makes it the duty of the judge of the circuit court to make an order that the case be submitted to another grand jury, and that the defendant, if in custody, shall be remanded to jail, or required to give bail for his appearance to answer a new indictment, if one be found, at that or the next term of the court.

It is further provided by section 160 that, unless a new indictment be found before the final discharge of the next grand jury, the defendant shall be discharged from custody or bail, unless for good cause the court shall otherwise order. In the state of case thus provided for, if a new indictment be returned against the defendant, though beyond the period fixed by the statute of limitations for the prosecution of one guilty of the offense charged, the prosecution would not be barred by the statute, for the prosecution under the second indictment would be but a continuation of that commenced under the first indictment, the defendanr being all the time before the court by virtue of its order *308made at the time of re-referring the case to the grand jury. Section 178, Or. Code, provides in substance that the dismissal of an indictment by the court on demurrer, or for objection to its form or substance taken during the trial, or for variance between the indictment and proof, shall not bar another prosecution for the same offense. Section 243 likewise provides that, when the indictment is dismissed by the attorney for the Commonwealth with the permission of the court, such dismissal shall not bar a future prosecution for the same offense. While not expressly authorized by sections 178 and 243, we know of no rule of law or practice that would forbid the re-reference to the grand jury of an indictment' dismissed as therein provided, or the holding of the defendant in jail or on bond to answer the, new indictment that might be found by the grand jury. However, where the dismissal of the indictment results as authorized by sections 178 and 243, and without a re-reference to the grand jury, that body may nevertheless return another indictment against the same defendant for the same offense at any time within the statutory period fixed for the prosecution of such an offense; but it is only where an order of re-reference is made upon the dismissal of the indictment that the return of a new indictment for the same offense by the grand jury will be treated as a continuation of the prosecution begun by the finding of the first indictment. It is not averred in the petition that a re-reference to the grand jury was had upon the dismissal of the indictment against appellee; consequently rfcs dismissal ended the prosecution against him, never to be revived, because the dismissal occurred more than a year after the commission of the offense charged. If the indictment had been dismissed within the year succeeding the commission of the offense, though without a re-reference of the case to the grand jury, another *309prosecution for the same offense might have been instituted against appellee at any time before the expiration of the year thereafter, by indictment, or by civil action, as here attempted ; but this case must, in our view of the law, be regarded as an original action, without support from the indictment under which the prosecution against appellant was originated, and, it being shown on the face of the petition that it was not brought within a year next after the right to recover the penalty accrued, viz., of the date of the commission of the offense complained of, it follows that no error was committed by the lower court in 'sustaining the demurrer and dismissing the petition. ' Therefore the judgment is affirmed.