Parker v. State

de GRAFFENRIED, J.

Jim Parker was indicted at the spring term, 1910, of the circuit court of Chilton county for the offense of assault with intent to rape. *129He was regularly tried by a jury, was convicted, and was, by the judgment of the court, sentenced to the penitentiary. This appeal is prosecuted for the purpose of reversing that judgment.

The undisputed evidence shows that the offense for which the defendant was indicted Avas committed more than three years before the finding of the indictment. The finding of the indictment appears to have been the commencement of the prosecution. The record therefore affirmatively shoAVS that the prosecution was commenced more than three years after the commission of the alleged offense, if it Avas committed. This offense is one of the felonies covered by section 7846 of the Code of 1907, which provides that: “The prosecution of all felonies, except those provided in the preceding sections, must be commenced Avithin three years next after the commission of the offense.”

At common law it Avas necessary to allege in an indictment the time when the offense AAras committed; and, while our Code has dispensed Avith that requirement of the common laAV, nevertheless an indictment for a felony, for Avhich our statutes provide a certain fixed period within Avhich a prosecution must be commenced, in legal contemplation, contains an allegation that the offense was committed Avithin that period. In a prosecution for assault Avith intent to rape, the indictment, in legal contemplation, contains an averment that the offense Avas committed within three years before the finding of the indictment. It is therefore not necessary for the defendant in a criminal case to specially plead the statute of limitations. If the evidence fails to disclose that the offense was committed within the period Avhich the laAV provides for the commencement of the prosecution, the case against him falls to *130the ground, and he is entitled to his discharge.—Clarke’s Manual, § 2180; Lyon v. State, 61 Ala. 224.

The defendant therefore was entitled to the general affirmative charge, which he requested the court in writing to give to the jury in his behalf.

Reversed and remanded.