Appellant was separately tried and convicted of the offense of conspiracy to commit a felony and his punishment assessed at confinement in the penitentiary for a term of five years.
The indictment was returned in the 79th Judicial District Court of Duval County on the 4th day of November, 1955. Upon the court’s own motion, venue was changed to Hays County and thereafter the cause was transferred to the district court of Comal County where trial and conviction were had from which appellant brings this appeal.
*253In view of our disposition of the case a recitation of the facts is unnecessary.
The indictment contains two counts, each of which charges appellant with the substantive offense of conspiracy and alleges that the offense was committed on or about the 1st day of September, A.D. 1951.
Appellant presented numerous exceptions to the indictment which were by the court overruled. Among those presented was the following: “(b) because it appears from the face of each count of the indictment that a prosecution for the offense therein charged against the defendant is barred by lapse of time.”
In the absence of a statute specifically fixing a limitation period within which an indictment for conspiracy may be presented, the provisions of Art. 180, Vernon’s Ann. C.C.P., are applicable which provide; “An indictment for any other felony may be presented within three years from the commission of the offense, and not afterward; except murder, * *
Art. 396, Vernon’s Ann. C.C.P., prescribes the requisites of an indictment and requires in subdivision No. 6 that “The time mentioned must be some date anterior to the presentment of the indictment and not so remote that the prosecution of the offense is barred by limitation.”
From the allegation of the indictment it appears that the indictment was presented more than three years after the date the offense was alleged to have been committed.
In 23 Texas Jur. 650, Sec. 41, it is stated: “Whenever the offense is subject to limitation an indictment or information must show that it was committed within the period of limitation.” Under the decisions of this court if the date alleged shows the offense to be barred by limitation, the indictment, information, or complaint so alleging is bad. 1 Branch’s Ann. P.C., 2nd Ed., 456, Sec. 456; Blake v. State, 3 Texas App. 149; Reed v. State, 13 S.W. 865; Harwell v. State, 65 S.W. 520; Bradford v. State, 62 Texas Cr. Rep. 424, 138 S.W. 119; Herron v. State, 150 Texas Cr. Rep. 475, 203 S.W. 2d 225, and Dixon v. State, 161 Texas Cr. Rep. 626, 279 S.W. 2d 868.
The state argues in support of the indictment that the crime of conspiracy charged therein is a continuing offense, that each overt act done in pursuance of the conspiracy tolls the statute *254of limitation and that since the proof showed overt acts committed within the limitation period the offense charged was shown not to have been barred by limitation. Numerous cases from other jurisdictions including federal decisions are cited and relied upon by the state.
In passing upon the sufficiency of the indictment it does not become necessary to determine the question whether the substantive offense of conspiracy in this state under the provisions of Arts. 1622-1626, Vernon’s Ann. P.C., is a continuing offense.
The date which it is charged the conspiracy was entered into is beyond the period of limitation and the indictment does not allege the performance of any overt act in furtherance of the conspiracy occurring within the period of limitation.
In those jurisdictions where the crime of conspiracy is held to be a continuing offense the failure to allege the commission of an overt act within the period of limitation would render the indictment insufficient. See Pinkerton et al v. United States, 145 F. 2d 252. Nor would proof that overt acts were committed within the period of limitation suffice as the sufficiency of an indictment is measured by its allegations rather than the proof offered. Mealer v. State, 66 Texas Cr. Rep. 140, 145 S.W. 353.
The state further argues in support of the indictment that the prosecution was not barred by limitation because the statute was tolled under the provisions of subdivisions 2 and 3 of Art. 183, Vernon’s Ann. C.C.P., by reason of the pendency of a prior indictment charging appellant with the same offense, returned by a grand jury of Duval County on July 16, 1954, and thereafter dismissed by the court on March 28, 1956.
These matters urged by the state as tolling the statute of limitation are not available to sustain the indictment because they were not alleged.
In 23 Texas Jur. page 630, Sec. 30, on the subject of indictment and information the rule is stated:
“The state is not bound to anticipate or negative defenses on the part of the accused but if the pleading shows on its face that the prosecution is barred by the statute of limitations, facts should be alleged which avoid the statute.”
We think the rule stated is sound and should be followed *255and is in keeping with the mandatory provisions of subdivision 6 of Art. 396, supra, which requires that the time mentioned in an indictment be some date anterior to its presentment and not so remote that the prosecution of the offense is barred by limitation and also with the well-established rule that the burden is on the state to show that the offense was committed within the period of limitation and the accused is not required to plead limitation as a defense. 1 Branch’s Ann. P.C. 2d Ed., 639, Sec. 661, and cases there cited. Such rule has also been announced and followed in other jurisdictions. See State v. Drum, 217 S.W. 23 (Mo. Sup., 1919) ; Combs v. Commonwealth, 84 S.W. 753, 119 Ky. 836 (1905); People v. McGree, 36 P. 2d 378 (Cal. Sup., 1934) ; Hollingsworth v. State, 65 S.E. 1077 (Ga. App., 1909) ; People v. Ross, 156 N.E. 303 (Ill. Sup., 1927) ; People v. Reiser, 269 N.Y.S. 573 (1934), and State v. McNeal, 105 So. 381 (La. Sup., 1925.)
The provisions of Art. 411, Vernon’s Ann. C.C.P., that presumptions of law and matters of which judicial notice is taken need not be stated in an indictment does not obviate the necessity of the indictment alleging facts which avoid the statute of limitations. A court can take judicial knowledge of the contents of the court records including indictments but not of the identity of the parties or transactions alleged therein. Roquemore v. State, 111 Texas Cr. Rep. 77, 11 S.W. 2d 316.
The indictment being insufficient, the judgment is reversed and the prosecution ordered dismissed.
Opinion approved by the Court.