Dissenting:
The misdemeanor with which the defendant was charged was committed about six years before the indictment was found. He was therefore, entitled to the protection of the limitation provided by the seventy-seventh section of the Act of March 21, 1860, P. L. 450, unless he was not “an inhabitant of this State or usual resident therein” during the term for which he was liable to prosecution. It is not alleged that he was absent from the State; his home was and continued to be in Allegheny County. He was, therefore, an inhabitant of this State and the statute was a bar to his prosecution. The learned trial' judge, however, gave a construction to the words “or usual resident therein” which permitted the jury to inquire as to his mode of living in the county and to determine whether he lived “openly and aboveboard.” This we think is not the sense in which the words are used in the statute. They refer to the whereabouts of the accused. The phrases are in the alternative, “an inhabitant of this State or usual resident therein.” A person might reside in: the State who was not an inhabitant thereof. The word “usual” qualifies the term “resident” and. relates to the place of abode — the customary place of living — and not to the manner of life. The conclusion seems unavoidable that if the accused was an inhabitant of Allegheny County at the time the offense was committed and continued to be an inhabitant thereof he could not be lawfully convicted because of the lapse of time between the commission of the offense and the finding of the indictment. And even if not an inhabitant of the State he would be protected if he were a “usual resident” ; that is, if he commonly or ordinarily resided therein. I would reverse the judgment, therefore, for the reason stated.
Orlady, P. J. and Kephart, J. concur in dissent.