jurisdictions the mere filing of a complaint with the justice, upon which no warrant is issued and no arrest made, will not stop the running of the statute,65 while in others the filing of a complaint or the laying of information before the magistrate is sufficient.66 It has been held that a warrant which is returned "not found" and is filed with the justice who issued it thereupon becomes functus officio and does not prevent the running of the statute.67 But there is also authority to the effect that the issuance of alias warrants from term to term will prevent the running of the statute.68

Statutes in some states specifically provide that a prosecution is commenced within the meaning of the statute of limitations by the issuance of a warrant, or by binding over the offender. Such a provision contemplates that there must be some connection between the prosecution before the justice of the peace and a subsequent indictment before the former can operate to suspend the running of the statute against the latter, and to have that effect the indictment must be a continuance in legal effect of what was commenced or originated before the justice,70 and hence must charge the commis

frequent opportunities to make it, the delay will be credited to the defendant. In re Clyne, 52 Kan. 441, 35 Pac. 23.

But where the sheriff has no authority to execute a warrant while the defendant is confined in the penitentiary, time during which he is so confined cannot be credited to him as unnecessary or unreasonable delay in executing it. State v. Bowman, 106 Kan. 430, 188 Pac. 242.

65 In re Griffith, 35 Kan. 377, 11 Pac. 174; People V. Clement, 72 Mich. 116, 40 N. W. 190.

66 A criminal action is begun as soon as information is laid before the magistrate, and in the case of misdemeanors the statute of limitations then ceases to run. People v. Reppin, 126 N. Y. Supp. 169.

The complaint made to a magistrate is a commencement of a prosecution sufficient to arrest the statute. State v. Howard, 15 Rich. (S. C.) 274.

In Minnesota proceedings before a magistrate by which the accused is

held to answer constitute the commencement of a prosecution. State v. Dlugi, 123 Minn. 392, 143 N. W. 971. 67 In re Broadhead, 74 Kan. 401, 86 Pac. 458.

68 Benson v. State, 91 Ala. 86, 8 So. 873.

Where the execution of the original warrant is prevented by the flight of the accused, and the original warrant is lost and an alias warrant is issued on which the accused is arrested within the statutory period, and an indictment for the same offense is returned after the expiration of the statutory period, there is no gap or chasm in the prosecution, and it is not barred. Clayton v. State, 122 Ala. 91, 26 So. 118.

60 Bryant v. State, 158 Ala. 26, 48 So. 543; Hickey v. State, 131 Tenn. 112, 174 S. W. 269.

70 King v. State, 151 Ala. 12, 44 So. 200; Greene v. State, 139 Ala. 157, 36 So. 773; Martin v. State, 79 Ala. 267.

sion of the same offense as that which is described or charged in the warrant.71

§ 208. Invalid indictment or complaint; amendment, substitution, continuance, etc. In the absence of a statutory provision to the contrary, the running of the statute is not suspended or interrupted by the return and pendency of an indictment upon which no valid conviction or judgment could be founded,72 nor by the filing of a void complaint or affidavit,73 nor by void proceedings on preliminary examination.74 And it follows that where the statute requires an indictment to be returned within a specified time after the commission of the offense, and there is no saving clause, if an indictment is quashed and a new one is returned, the statute continues to run until the return of the second indictment, and offenses committed more than the statutory period before the date of its return are barred.75 And the same rule has been applied where the state voluntarily enters a nolle prosequi after the defendant has moved to quash the indictment.76 On the other hand it has been held that even in the absence of statute, the finding of an invalid indictment will stop the running of the statute as against a prosecution under a new indictment for the same offense found on a recommittal of the matter to the grand jury; 77 that a nolle prosequi, or the discharge of the defendant from his recognizance where the case is continued, is not a termination of the case, and that the prosecution will be deemed

71 Jackson v. State, 106 Ala. 136, 17 So. 349.

72 State v. Disbrow, 130 Iowa 19, 106 N. W. 263, 8 Ann. Cas. 190; State v. Gibson, 108 La. 464, 32 So. 332; State v. Morrison, 31 La. Ann. 211; State v. Curtis, 30 La. Ann. 1166; State v. Morris, 104 N. C. 837, 10 S. E. 454; State v. Tomlinson, 3 Ired. (N. C.) 32.

An indictment which is void because found at an illegal term of court will not stop the running of the statute. Parker v. State, 2 Ala. App. 127, 56 So. 872.

73 Whaley v. State, 17 Ala. App. 661, 88 So. 24.

74 Where the justice of the peace has no authority to hold a preliminary ex

amination or to bind the accused over, his acts in so doing are a nullity and will not prevent the running of the statute. In re Crandall, 59 Kan. 671, 54 Pac. 686.

75 State v. Disbrow, 130 Iowa 19, 106 N. W. 263, 8 Ann. Cas. 190.

76 State v. Baker, 30 La. Ann. 1134, overruling State v. Cason, 28 La. Ann. 40; State v. Thomas, 29 La. Ann. 301. This rule has been changed by statute since the above decisions. Marr's Ann. Rev. St. § 2225.

77 This was held to be true where the statute required the "prosecution" to be commenced within a specified time after the offense. Hickey v. State, 131 Tenn. 112, 174 S. W. 269.

to have been commenced when the original indictment was returned although a new one is subsequently found;78 and that, where a complaint for the violation of a municipal ordinance is lodged within the statutory period and is dismissed by mistake and subsequently reinstated, the prosecution is not barred though the reinstatement takes place after the statute has run.79 And it has also been held that where the accused waves defects in a complaint or warrant by failing to object at the proper time, he cannot thereafter be heard to say that, because of such defects, they did not constitute the commencement of an action against him so as to stop the running of the statute.8

Statutes in some states expressly provide that when an indictment is lost, destroyed, or quashed, set aside, or reversed, a further time shall be allowed for finding a new one,81 or that the time during which the original indictment was pending,82 or the time elapsing between the finding of the first and the subsequent indictment,88 shall not be counted in determining whether limitations have run. Provisions

of this character merely operate to prolong the time where there is an existing statutory period of limitation, and do not of themselves constitute a period of limitation where none exists otherwise.84 To render them applicable both indictments must be for the same offense.85 It has also been held that the prosecution will be deemed to be continuous and will date from the time the first indictment was returned, where the statute provides for the resubmission of the case to the grand jury in case an indictment is dismissed for insufficiency, and for holding the defendant in custody or on bail for a specified length of time to await the return of another indictment.80

An amendment of the affidavit upon which an information is based does not terminate the prosecution or operate to discharge the defendant, and does not affect the continuity of the prosecution, where the statute expressly authorizes such amendments as a matter of right. 87 And the same is true of the amendment of certain counts of an information and the reverification of the information, where the defendant is convicted on a count which is not amended.88

So. 663; White v. State, 103 Ala. 72, 16 So. 63; Smith v. State, 79 Ala. 21; Weston v. State, 63 Ala. 155.

This rule does not apply where the first indictment is void because found at an illegal term of court. Parker v. State, 2 Ala. App. 127, 56 So. 872.

84 If the offense is one of that class for the prosecution of which no bar is established, and the indictment is lost, destroyed or quashed, it is not necessary that a new one be found within the time so prescribed. Thompson v. State, 54 Miss. 740.

85 Alabama. White v. State, 103 Ala. 72, 16 So. 63; Buckalew v. State, 62 Ala. 334, 34 Am. Rep. 22.

Arkansas. Stafford v. State, 59 Ark. 413, 27 S. W. 495; Lay v. State, 42 Ark. 108; Jester v. State, 14 Ark. 552.

Colorado. Ross v. People, 62 Colo. 193, 162 Pac. 152.

Illinois. Swalley v. People, 116 Ill. 247, 4 N. E. 379.

Kentucky. Newport News & M. V.

Co. v. Com., 14 Ky. L. Rep. 196.

86 Berkley v. Com., 164 Ky. 191, 175 S. W. 364; Bowman v. Com., 146 Ky. 486, 143 S. W. 47; Com. v. T. J. Megibben Co., 101 Ky. 195, 40 S. W. 694; R. M. Hughes & Co. v. Com., 31 Ky. L. Rep. 179, 101 S. W. 1194; Newport News & M. V. Co. v. Com., 14 Ky. L. Rep. 196; Louisville & N. & G. S. R. Co. v. Com., 4 Ky. L. Rep. And see State v. Simpson, 166 Ind. 211, 76 N. E. 544, 1005.

627.

87 State v. Simpson, 166 Ind. 211, 76 N. E. 544, 1005.

88 State v. Ling, 91 Kan. 647, 138 Pac. 582, Ann. Cas. 1915 D 374. In this case verbal changes were made in the second and third counts of an information, and the information was then reverified but not refiled. The defendant was convicted on the first count. It was held that the information was not rendered functus officio, and that it was not necessary to refile it.

Nor is the substitution of a copy of the original indictment where the original is lost the institution of a new prosecution.89

As a rule, if the prosecution is commenced within the time prescribed, delay in bringing the case to trial will not bar the prosecution,20 and the cause may be continued from time to time indefinitely without interposing the question of limitation.91 In North Carolina the entry of a nolle prosequi "with leave," where the defendant has not been apprehended, does not terminate or affect the continuity of the proceedings.92

§ 209. Waiver and estoppel. It has been held that the statute of limitations cannot be waived by the accused,93 and also that he does not waive the right to rely on it by going to trial on an indictment which shows on its face that the prosecution is barred.94 Nor does he waive the filing of the information within the time prescribed by the statute by procuring continuances of his examination before a magistrate.95 On the other hand it has been held that if the defense that the prosecution is barred is not properly raised at the trial it cannot be considered on appeal.96

An agreement by one accused of fornication and bastardy to support the prosecutrix and her child, which he fails to perform, does not estop him from setting up the statute of limitations as a defense to a subsequent prosecution for the offense, and neither such an agreement nor its breach interferes with the running of the statute or lifts its bar.97

89 Brown v. State, 57 Tex. Cr. 570, 124 S. W. 101.

90 City of Keokuk v. Schultz, 188 Iowa 937, 176 N. W. 946.

91 Carr v. State, 36 Tex. Cr. 390, 37 S. W. 426.

The filing away of an indictment, on condition, with leave to reinstate it on breach of the condition, when done with the consent of the defendant, amounts merely to a continuance, and does not affect the continuity of the prosecution where the indictment is subsequently prosecuted to trial on breach of the condition. Com. v. Bottoms, 105 Ky. 222, 48 S. W. 974.

92 State v. Williams, 151 N. C. 660, 65 S. E. 908.

93 Walker v. State, 12 Ga. App. 91, 76 S. E. 762. See also State v. Steensland, Idaho 195 Pac.

1080.

94 Walker v. State, 12 Ga. App. 91, 76 S. E. 762.

95 People v. Ayhens, 85 Cal. 86, 24 Pac. 635.

96 People v. Blake, 121 N. Y. App. Div. 613, 106 N. Y. Supp. 319, aff'd 193 N. Y. 616, 86 N. E. 1129; People v. Austin, 63 N. Y. App. Div. 382, 71 N. Y. Supp. 601, aff'd 170 N. Y. 585, 63 N. E. 1120; People v. Bailey, 103 N. Y. Misc. 366, 171 N. Y. Supp. 394. 97 Com. v. Werner, 5 Pa. Super. Ct. 249.