Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-22

At the August term, 1870, the plaintiff
| in error was put upon his trial, and was
convicted of simple assault, and was
adjudged by the court to imprisonment
for three months in the county jail, and
to pay fine Of fifty dollars. His mo-
tion for new trial was disallowed, and
he has appealed.
The decisive question in this case, and
| the only one to which it is necessary to
refer, is as to the right of the plaintiff in
error TO a new trial; when It had been
disclosed in the proof that the assault of
which he was convicted was committed
more than twelve months before the in
diciment was found. The Code provides
that eli prosecutions for msdemeaners,
unless otherwise expressly provided,
shall be commenced within twelve months
next after the offense has been committed.
S4, 9S3.
This was also in substance the provision
of the act of 1920, Oh. 9. It is provided
also that on an Indictment for public
offense admitting of different degrees. the
defendant may be convicted OF such Of
Tense, or any degree lower than that
charged in form in the indictment IS, 122,
ct vide 1928. Under this provision the
jury had the authority to find the party
guilty, as they did, of q single as
sault. The proof shows that the
offense was committed On the 23d
of March, 1863-and there Is no evil
dence that the plaintiff IN error was not
''usually and publicly resident within this
State" for any period intervening between
that day and April term, 1856, of the
Circuit Court, to effect the bar of the
statute. Code S498S. The plaintiff in
error was entitled to a new trial, in order
to avail himself of this fimitstion. This
is not new question in this court, though
there is some conflict of authority upon
it. In the case of Wilson vs.. The State.
Yerg, SIG, it was held, where the de-
PENDANT was indicted for an assault and
battery, with an intent to commit murder
in the first degree, and found guilty of an
assault and battery only, which had been
committed more than twelve months be-
fore the finding of the indictment, that
the statute of 1920, ch. 9, was bar to
the prosecution. In the case of The STATE
VS.. Bowling, 10 Hum. 81, the question
came before this court in another form,
and it was held, that the pro-
per plan for defendant to avail
himself of the defence of the
statute of limitations of twelve months,
| was by proof of the fact on trial, and not
| by motion in arrest in judgment, plea or
demurrer. That case recognizes the doc
trine of the case of Wilson vs.. The State,
| 7 Yer. SIG, but only undertakes to settle
question of practice under 1t. A con-
trary doctrine, however, is held in the
case of Garden VS.. The State, 8 Head.
269, to the effect that if the prosecution
be for felony, and the party be con-
victed of a misdemcanor, the limitation
prescribed in felonies Of the grade of that
charged, will apply, and not the limita-
ton for the misdemeanor, of which the
party was found guilty. We cannot as
sent to this proposition. The citizen has
right to be tried by the forms and re-
quirements of the law. In the accusation
of felony against him, he is also ac-
cused of misdemeanor. A conviction
of the misdemeanor, charged and proven
to have been committed more than one
year before the finding of the bill of in
ulCtIHeHG, Is d Duulty. he CduHOb NC
punished for it. We had rather accept
the reasoning Gin Wilson VS.. The State, Z
Yer. 5l6) of Judge Green, that contrary
doctrine would defeat the intention of the
act of Assembly, and prosecutions for
assaults and batteries, might be gotten up
at any distance of time, provided a grand
jury could be induced to find q bill for an
, assault, with an intent to kill. A tempta-
ton would be held out to prosecutors,
too, to commit perjury, in order to get
such Indictment found that the statute of
limitations may not operate.
The judgment is reversed and new
trial granted. SNEED, Judge.
Whereupon by leave of the court the
Attorney General entered nolle pros.
A true copy.
Test : j. F. DEABERICK, Clerk.