People v. Lindenborn

The defendant is charged by indictment with having violated section 443 of the Penal Code, relating to mock auctions. A motion is now made on his behalf to dismiss the indictment on the ground that the evidence presented to the grand jury was insufficient to authorize it. The motion "must be granted. There was illegal evidence received by the grand jury, of such a character that it may well have influenced that body towards finding an indictment upon the specific charge made. The charge being that the defendant unlawfully sold at public auction a China plate, in violation of section 443 of the Penal Code, by selling the same to himself under a fictitious name, evidence was received by the grand jury, and presumably considered by it, to the effect that he was in the habit of committing this offense by striking off goods to the name “Lohring”; that being a fictitious name, representing himself. This evidence was clearly improper. No one should be indicted because accustomed to commit crime, nor should evidence of such fact be permitted to influence the mind upon a question whether a particular crime has been committed. Only legal. evidence can properly be received by the grand jury. Code Cr. Proc. § 256. It is perhaps true that an indictment may properly be found when there is sufficient legal evidence to authorize it, notwithstanding improper evidence has also been received; but in this case it is apparent, I think, that the grand jury must have given weight to the improper evidence presented, and acted upon it, in the final determination reached.

There was not sufficient legal evidence to authorize the finding of this indictment. The only legal evidence before the grand jury was that of one O’Gorman, who testified that he was formerly an employé of the defendant; that “on one occasion a set of plates was knocked down to Lohring”; and that he (the witness) after-wards took one of these plates to the defendant’s house, and left it there. Eliminating the illegal evidence above referred to, there is nothing whatever showing or tending to show that Lohring was a fictitious person, or that that name represented the defendant, nor that the plates were sold by the defendant to himself under that name. That one of these plates was afterwards taken to defendant’s house, and left there, is a fact as consistent with innocence as guilt. It did not even appear that this was done at his instance. It

There is, in my opinion, another reason for granting this motion. There was no evidence before the grand jury of the time of the commission of the crime charged. Section 142 of the Code of Criminal Procedure declares that “an indictment for a misdemeanor must be found within two years after its commission.” The only exception to this requirement is found in section 143, which provides that no time during which the accused is not an inhabitant of, or usually resident within, the state, or usually in personal attendance upon business within the state, is to be deemed a part of the limitation. A grand jury is not authorized to find an indictment for a misdemeanor after the lapse of two years from the time of its commission, unless it is made to appear by the evidence before it that some one of the exceptions stated in section 143 exists. The first inquiry must be, was the crime committed within two years? If it was not, there is but one remaining inquiry: Was the defendant during any portion of that time not an inhabitant of, or usually resident within, the state, or usually in personal attendance upon business within the state? If the crime was committed more than two years before the case is presented to the grand jury, and nothing appears to take it out of the operation of the statute, I do not think an indictment can properly be found. A person cannot properly be indicted for an offense of which the law cannot take cognizance, and under section 142 the law cannot take notice of an offense committed before the time limited by that section, unless the case is within some one of the exceptions specified in section 143. The statute is peremptory. The indictment “must” be found within the time limited, unless the case falls within the exceptions stated. The grand jury may not find an indictment simply because a crime has been some time committed, but only when it has been committed within the” prescribed time, unless it appears by the evidence before it that, although committed before the prescribed time, the statute has not run against it. This necessitates proof either that the crime was committed within the time limited, or that some fact exists by reason of which the operation of the statute had been suspended. If it appears to have been committed beyond the limited time, it is, in judgment of law, as if no crime has been committed; and the grand jury is bound to so regard it, unless it also appears that, because of

“The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. * * * But it is otherwise when a statute of limitation is granted by the state. Here the state is the grantor surrendering, by act of grace, its right (to prosecute, and ordering the offense to be no longer the subject of prosecution.”