Dissenting. — I pm unable to add my approval to the doctrine laid down in the majority opinion in this case. The first information filed January 29, 1917, contained four counts charging appellant with possession and transportation of intoxicating liquor, alleged to have been committed on August 31, 1916. The lower court refused* to require the prosecution to elect upon which count it would rely for a conviction. Appellant was tried and convicted. Appeal was taken to this court (State v. Bilboa, 33 Ida. 129, 190 Pac. 248), which held that the lower court erred in refusing to sustain a demurrer to the information upon the ground that it was duplicitous or in not requiring the state to elect upon which particular offense it would rely for a conviction, and remanded the cause for further proceedings. The remittitur from this court was handed down June 9, 1920'. On September 25, 1920, the lower court sustained the demurrer and ordered the prosecuting attorney to file a new information. The second information was filed September 25, 1920, charging the unlawful transportation of intoxicating liquor only.
The position I take, which is borne out by respectable authority, is that the filing of the second information was nothing more than a continuation of the original proceedings, the same offense being charged in both informations, and having been commenced within the required time and continuously prosecuted thereafter, the statute of limitations is tolled.
It is apparent that the first information was filed in time. It is also apparent that the second information was filed more than one year after the alleged commission of the offense. If the latter information were the only one filed the plea of the statute of limitations would be good. Both informations charged transportation of intoxicating liquor, although the former included other counts. Counsel for appellant concede that if the state had been required to elect the information would have sustained a conviction upon *106the transportation charge. The second information has exactly the same effect as an election, namely, to charge transportation, upon which charge appellant has been twice convicted.
In the majority opinion great stress is laid upon the wording of various limitation statutes. Having conceded that the second information was filed more than a year after the commission of the offense, I cannot see that it is material whether the prosecution was commenced or information filed, so long as the proceedings thereafter were continuous and necessitated the. filing of the second or amended information. The wording of the limitation statutes does not account for the two classes of cases bearing on the tolling of the statute of limitations. The division is occasioned by states having statutes providing that the time during which a prior indictment or information, which has been quashed or set aside, or appeal taken, was pending, shall be deducted from the period of limitation applicable to the prosecution, in which states, by force of statute, the time is deducted. The other class of cases concern those states which do not have such a statute, by which we are governed, Idaho not having such a statute. In this class of cases it has been held that the pendency of a prior indictment or information for the same offense tolls the statute of limitations, provided the disposition of the first indictment or information and the finding of the second are such as to constitute one continuing prosecution. It will be seen that two essentials are necessary to invoke this rule. The second indictment must be for the same offense and the disposition of the first indictment and the finding of the second must constitute one continuing prosecution. In the instant case there can be no question that the two informations were for the same offense, and the sustaining of the demurrer to the first information and the finding of the second constituted one continuing prosecution and also that each step taken was under statutory direction.
The recent case of Mays v. Commonwealth, 197 Ky. 295, 246 S. W. 802, considered a very similar state of facts as those presented here. In that case the first indictment *107charged defendants with both -unlawful sale and transportation of intoxicating liquor. They were tried and convicted and appealed. The appellate court held the indictment duplicitous. The lower court ordered the case resubmitted to the grand jury; a new indictment was found after the period of limitations had expired, charging transportation only. The defendants were tried and convicted and appealed. The court held:
“The fact that the first indictment charged the unlawful sale of intoxicating liquor, which was held bad on demurrer because the facts stated showed only an unlawful transportation, does not prevent a subsequent indictment for the unlawful transportation, based on the same facts, from being a continuation of the original prosecution, so as not to be barred by the statute of limitations,” giving its reason therefor as follows:
“When a demurrer is sustained to an indictment because of its failure to sufficiently describe either the offense or the particular acts constituting it, it does not charge any offense, as an indictment must to be good on demurrer and the provisions for a resubmission of the case to another grand jury were obviously enacted to enable the commonwealth to present a good indictment in the same case (that is upon the same facts), whatever the cause which rendered the first indictment demurrable. To hold, as we are asked to do, where, as here, the original indictment charged no offense, because it described a sale in one part and a transportation in another, the grand jury could not, upon a resubmission and upon the same facts perfect the indictment so as to conform to the facts, rather than some statement, and that 'an incorrect one, in the old indictment, would ignore the fact that by the terms of the Code it is ‘the case’ and not the old indictment, that is resubmitted to the grand jury, and give to the code provision a most unreasonable construction, and one that it cannot be imagined was ever intended.”
In the case of State v. Thomas, 30 La. Ann. 301, the court said:
*108‘ ‘ There was not a voluntary discontinuance of the prosecution. There was a trial and the verdict and sentence of the first trial were set aside by this court and very shortly thereafter the new prosecution was commenced. While fully admitting the correctness of the rule invoked by the defendant that a plea of prescription will prevail against a new prosecution instituted after the lapse of the time fixed by law for its commencement, when the former prosecution has been terminated by a nolle prosequi on the part of the State, the same consequences do not follow when the State did not fail to prosecute, but on the contrary proceeded to trial and obtained a conviction of the defendant. The lower court properly overruled the plea of prescription. ’ ’
In the case of Berkley v. Commonwealth, 164 Ky. 191, 175 S. W. 364, it was held:
“An indictment charged accused with wife desertion, but alleged that accused seduced prosecutrix under promise of marriage, and, after marrying her, abandoned her within three years without just cause. A demurrer to the indictment was sustained with leave to resubmit to the grand jury then in session. The grand jury returned an indictment charging accused with seduction. The first indictment was returned within less than four years after the abandonment and hence within the time prescribed by Ky. St. 1915, sec. 1214. The second indictment was returned after the four years. Held that, under Cr. Code Prae., sec. 170, providing that, where a demurrer is sustained to an indictment, the matter may be referred to another grand jury, and accused held in custody, the second indictment was but a continuation of the prosecution begun by the first indictment and was not barred by limitations.”
In the case of Tully v. Commonwealth, 13 Bush (Ky.), 142, the court held:
“The plea of the statute of limitations is unavailing when the indictment for a misdemeanor was returned less than one year after the commission of the offense, and the prosecution has been continuously kept up since the return *109of the indictment. When one indictment is dismissed, and the matter is submitted to the grand jury, without releasing or discharging the accused, and a new indictment is found against him, the prosecution has been continuous,” saying:
“The plea of the statute of limitations was clearly unavailing. The record exhibited shows that the indictment was returned by the grand jury within less than one year after the alleged unlawful acts were done, and although the first indictment was fatally defective, yet the prosecution has actually been on foot and has been continuously kept up since the return of that indictment.”
To the same effect, see Hickey v. State, 131 Tenn. 112, 174 S. W. 269; note, 3 A. L. R. 1330. It was said in the case of Davenport v. State (Okl. Cr.), 202 Pac. 18, 25:
“This court now announces the rule that, where a demurrer is sustained to an indictment or information for a felony, and the court, at the time of sustaining the demurrer, directs the case to be resubmitted to the same or another grand jury or that a new information be filed and a new indictment is returned or a new information is filed in obedience to such direction of the court, the prosecution is continuous, and relates back to the time of the return of the defective indictment. ’ ’
The burden of proving a state of facts which would suspend the operation of the statute of limitations is on the prosecution. To invoke the rule heretofore mentioned, it has been held that it was necessary to a conviction for the state to prove, either that an offense had been committed within the period of the statute, or that there had been a former indictment found for the offense within the period of limitation, which indictment had been quashed or set aside. (Gill v. State, 38 Ark. 524; Jester v. State, 14 Ark. 552; White v. State, 103 Ala. 72, 16 So. 63.) This requirement was fully complied with by the prosecution in the instant case. Upon the testimony of the clerk of the lower court it was proven that the former information had been filed and quashed and resubmission ordered. Upon cross-examination of one of the witnesses for the state the *110appellant brought out the fact that the acts and events he was testifying to were the same as those he testified to upon the former trial.
The statute of limitations, as suggested in Davenport v. State, supra, is not a vested right but merely an act of grace on the part of the state enabling the accused to be informed of the nature of the state’s grievance in time to obtain the facts necessary for his defense. In that case the court held:
“A defective indictment or information apprises the defendant of the character of the crime with which he is charged, and is sufficient to place the statute in repose during the pendency thereof.”
In the case under consideration the original information, although defective, apprised the appellant of the character of the crime with which he was charged.
The legislature, appreciating the fact that prosecuting attorneys may not always prepare an indictment or information free from objection in the first instance, provided a method of amendment, by C. S., sec. 8874, whereby upon demurrer being sustained to the indictment the court might order the case resubmitted to the same or another grand jury. To give effect to this section we find provision made, upon the court ordering the matter resubmitted, for the appearance of the defendant to answer the new indictment. (C. S., sees. 8876 and 8866.) The legislature certainly did not intend, where an information was filed within time hut found defective and a new information ordered filed, that by reason cf the second information being filed after the prescribed time, charging the same offense, the statute of limitations should furnish a loophole by which criminals could escape prosecution. The appellant has been tried and convicted by two different juries, and his guilt is obvious.
Unfortunately this case was prematurely published as originally decided, ante, p. 92, 213 Pac. 1025, and while a petition on rehearing was pending. In that opinion will be found a further discussion of the questions involved in this appeal, together with additional citations.
*111In my opinion the judgment of the lower court should he affirmed.