ON KEHEAEING.
*99Prawley & Koelsch, for Appellant.
A. H. Conner, Atty. Gen., and James L. Boone, Asst. Atty. Gen., for the State.
VARIAN, District Judge.— This case has been twice before the court: 33 Ida. 129, 190 Pac. 248; ante, p. 92, 213 Pac. 1025.
An information was filed by the prosecuting attorney of Ada county on January 29, 1917, charging appellant with transporting intoxicating liquor for beverage purposes, and of having in his possession intoxicating liquor. On the first appeal, 33 Ida. 129, 190 Pac. 248, the convic*100tion was reversed on the ground that the information was duplicitous. This court held in effect that the information was subject to demurrer, hut having overruled the demurrer, the trial court should have granted appellant’s motion to require the prosecution to elect, before trial, upon which of the offenses stated in the information the prosecution would rely. On the coming down of the remittitur, the trial court sustained the demurrer and directed the prosecuting attorney to file another information under the provisions of C. S., sec. 8874. Accordingly a new information, based upon the same facts and the same preliminary examination, was filed on September 20, 1920. A trial had upon this information resulted in a verdict and judgment of guilty, from which this appeal is taken. A complete statement of facts will be found in the two former opinions above cited.
The sole question urged upon rehearing is that the prosecution upon the information filed' September 20, 1920, is barred by the provisions of C. S., sec. 8703, which provides: “An indictment for any misdemeanor must be found within one year after its commission.”
This court held in State v. Steensland, 33 Ida. 529, 13 A. L. R. 1442, 195 Pac. 1080, that the time within which an offense is committed is a jurisdictional fact in all cases subject to limitation, and that a plea of not guilty raises the issue of the bar of the statute of limitations in all cases where the prosecution of the offense is subject to limitation.
“We are of the opinion, however, that the statute does not offer a privilege which requires any action on the part of the accused either to accept or reject; that, on the contrary, the state has seen fit to deprive itself of the right to prosecute in all cases coming within the terms of the statute, and that the time within which an offense is committed thus becomes a jurisdictional fact in all cases subject to limitation.
“The exception contained in the statute is not one enacted for the benefit of the accused, but for the benefit of the state. By C. S., sec. 8703, it is provided that the indict*101ment must be found within one year after the commission of the offense if it is a misdemeanor. But it is-provided in C. S., see. 8704, that the state does not grant this absolute bar, but reserves to itself the 'right to prosecute and punish, in eases where a defendant was absent from the state when the crime was committed and when the accused was absent or not usually resident within the state during a portion of the time, and there is excluded from the computation such period of time as the accused may be absent or not usually resident in the state. The exception, being for the benefit of the state, it is incumbent upon the state to show that it obtains.” (Rice, C. J., in State v. Steensland, supra.)
The court had the identical statute under consideration in the case just cited.
C. S., sec. 8'812, provides that the provisions of the code relative to indictments and other provisions of law applying to prosecutions upon indictments, and to writs and process therein, shall, “as near as may be,” in the same manner and to the same extent apply to informations and all prosecutions and proceedings thereon.
The filing of an information in the district court by the prosecuting attorney corresponds to the finding of an indictment by a grand jury. C. S., sec. 8703, might be construed to read, for the purposes here, “An information for any misdemeanor must be filed within one year after its commission.” The statute runs from the commission of the offense to the filing of the indictment or information; not, as in many jurisdictions, to the commencement of the prosecution. It is therefore immaterial whether the prosecution is continuous or not. There is no connection between the information filed January 29, 1917, and the information filed September 20, 1920. The latter is in no sense an amended information relating back to the date of the filing of the former. While each is based upon the same state of facts and upon the same preliminary examination, the statute does not run against the commencement of the prosecution, but the filing of the information. Nor will it suffice *102to say that the last information is a mere incident in a valid prosecution commenced by the filing of the information on January 29, 1917. The latter information has been quashed, and has no effect in law. It is dead. The conviction can only be sustained upon the information upon which appellant was last tried, and the statute had run against it at the time it was filed.
“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. And the same rule has been applied where the state voluntarily enters a nolle prosequi after the defendant has moved to quash the indictment.” (1 Cyclopedia of Criminal Law, sec. 208, p. 378.)
We think the case of State v. Disbrow, 130 Iowa, 19, 8 Ann. Cas. 190, 106 N. W. 263, is in point. The statute there interpreted is somewhat stronger than the one under consideration here. It provided that an indictment must “■be found within three years after the commission of the offense and not afterwards.”
“The beginning of a prosecution and a finding of an indictment are not equivalent expressions. A prosecution is begun when an information is filed before a magistrate and a warrant issued for the defendant’s immediate arrest. An indictment is found when it is presented by a grand jury in due form in open court and filed with the clerk. This distinction has been widely, though perhaps not universally recognized.The language of the statute is too clear for construction, and, without reference to the time when the proceedings were begun, the indictment must bé found within three years from the commencement of the case, and not afterward.” (State v. Disbrow, supra.)
It is true that in the case last cited the indictment was one upon which “no valid conviction or judgment can be founded.” If we concede that the information filed Janu*103ary 29, 1917, against which the demurrer for duplicity was sustained toy the trial court, was good in the absence of attack, it is nevertheless true that this court has in effect held that the information was bad in law and the conviction thereon should not stand. (State v. Bilboa, 33 Ida. 129, 190 Pac. 248.) The judgment is final upon it. (C. S., sec. 8872.)
The supreme court of California has held, construing statutes practically identical in their provisions with C. S., secs. 8703, and par. 5 of sec. 8870, that where accused, on being taken before a magistrate, procures the continuance of the preliminary hearing from time to time until the year has expired, and is then bound over and information filed, the prosecution is barred, and that the question of the running of the statute of limitations may be raised by demurrer. (People v. Ayhens, 35 Cal. 86, 24 Pac. 635.)
The cases cited in State v. Bilboa, ante, p. 92, 213 Pac. 1025, interpret statutes which either require the “prosecution” to be commenced within a specified period, or that the time during which the indictment or information is pending, if it be quashed, set aside or reversed, shall not be computed as part of the time of the limitation prescribed; others provide that if any indictment, found within the time limited, shall be defective, another prosecu-. tion for the same offense may be instituted within a further stated period, after the abandonment of the first prosecution by the state. Where the statute runs to the commencement of the prosecution, generally the statute defines commencement of the prosecution as the issuing of a warrant, or the binding over of the offender.
The cases of People v. Giesea, 63 Cal. 345, People v. Lundin, 120 Cal. 308, 52 Pac. 807, and State v. Hansen, 10 Wash. 235, 38 Pac. 1023, are not in point. All three relate to statutory provisions requiring trials to be had within sixty days after the filing of the information. The two California cases hold that the provision of the statute does not apply to the second trial where a defendant has appealed to the supreme court and had his case sent back for *104a second trial. The Washington case holds that where the first information is dismissed and a second is filed in its stead, the fact that more than sixty days elapses between the filing of the first information and the trial npon the second is not ground for dismissal under the statute.
It has been suggested on the argument that the provisions of C. S., sec. 8874, by implication extend the period limited by statute. It reads:
“If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to he resubmitted to the same or another grand jury.”
This statute does not expressly toll the running of the statute, and an interpretation of its terms fails to disclose that it impliedly does so. The intent of the statute, as gleaned from the language used, is to the effect that when an indictment (or an information) is demurred to and the demurrer allowed, the judgment is (a) final upon the indictment (or information) demurred to, and (b) is a bar to. another prosecution for the same offense, unless the court directs the case resubmitted to the same or another grand jury, or that another information be filed. The only effect of the exception noted is to permit the resubmission of the case in certain instances; otherwise, the judgment on demurrer bars further prosecution for the same offense. It does not enlarge or extend the general statute of limitation, C. S., sec. 8703. The latter statute is in force and its provisions will apply in any event. Both sections should be read together.
It will be noted that the only tolling of the statute is provided for in C. S., sec. 8704, and then in ease the defendant is out of the state. It appears from the record here that the defendant was within the state during the time the statute was running.
The judgment is reversed and the cause remanded, with instructions to dismiss the action.
*105William A. Lee and Wm. E. Lee, JJ., concur.