This Petition for a Writ of Habeas Corpus was filed in this Court as an original action by John Ed Grayer who is incarcerated in the Arkansas State Penitentiary, serving two sentences (one for burglary and one for grand larceny) for a total of twenty-eight years. Sentences, after conviction, were pronounced on August 21, 1958 by the Circuit Court of Crittenden County.
The petition, an unverified statement, signed by John Ed Grayer (apparently in his own handwriting), sets out, in substance, the following alleged facts:
(a) He was arrested for burglary and grand larceny in 1952 in Crittenden County and placed in jail, but the charges were dropped according to his information. A deputy sheriff of Crittenden County took him to Memphis, Tennessee where he was placed in jail.
(b) He was sentenced to prison in Tennessee where he served four and one-half years in the penitentiary, and then was released.
(c) He visited West Memphis (in Crittenden County) October 13, 1957 where he was arrested for driving while drunk, whereupon the officers there learned his identity.
(d) In August, 1958 he was tried on information for the 1952 offenses and convicted to serve a total of twenty-eight years in the Arkansas Penitentiary.
Petitioner prays that he “receive justice according to the due process of law of this State”.
Upon receipt of the above petition this Court appointed Elton Sieves III of West Memphis to represent the petitioner. The appointed attorney has filed an excellent brief in behalf of the petitioner in which it is forcefully contended that the Circuit Court of Crittenden County had no jurisdiction to try and convict the petitioner, and that therefore he should be released from prison. The petitioner has not in this case brought the records of his convictions before us by way of certiorari, but he has done what amounts to the same thing — he has. filed with the Clerk of this Court a duly authenticated record of his convictions in the trial court. We therefore-treat his petition as if it were one for certiorari, and will proceed to examine the merits of petitioner’s contention that the trial court had no jurisdiction to try and convict him.
Petitioner relies on Ark. Stats. § 43-1602 to show lack of jurisdiction in the trial court. This section, in all parts material here, reads:
“No person shall be prosecuted, tried, and punished for any other felony unless an indictment be found within three [3] years after the commission of the offense. . . .”
The record of petitioner’s 1958 convictions in the Critteden County Court above mentioned contains the information upon which he was tried. It shows he was tried for offenses allegedly committed in 1952 — more than three years before trial. Under, those facts alone we would be compelled to hold the trial court was without jurisdiction to try the petitioner. See Pate v. Toler, 190 Ark. 465, 79 S. W. 2d 444, where this Court, in construing § 43-1603 which is analogous in this connection to § 43-1602, said:
‘ ‘ The above section is somewhat more than a statute of limitations, as regards to time. Ordinarily, the statute of limitations in proceedings is a matter of defense, which may be pleaded or be waived. The above section, however, is a limitation upon the power of courts to try one for any offense less than a felony, unless the charge shall have been instituted within the year after the offense charged was committed.”
There is another statute however which, we think, nullifies the effect of § 43-1602 in this case when considered in connection with the facts set forth in the record. That statute is § 43-1604 and it reads:
“Nothing in the two preceding sections shall avail any person who shall flee from justice; and in all cases the time during which any defendant shall not have been a resident of this State, shall not constitute any part of the limitation prescribed in the preceding sections.” (Emphasis added.)
The petitioner states, as above noted, that he served four and one-half years in the Tennessee Penitentiary between 1952 and 1957. He here contends that during those intervening years he was a resident of Arkansas, and that therefore the three-year statute (§ 43-1602) continued to run during his imprisonment in Tennessee.
The pivotal issue therefore is the determination of what the legislature meant by the word “resident” as it is used in § 43-1604. Is its meaning similar to the word “domicile” or does it imply physical presence?
Petitioner apparently takes the position that, in this situation, “residence” is similar to “domicile” since he cites § 48 in 17A Am. Jur. under the heading “Domicil”. In § 1 of the above citation we find this explanation of the topic discussed:
“This article discusses the general principles relating to the nature and elements of domicil. . . .”
Petitioner also relies on the case of Metropolitan Life Insurance Company v. Jones, 192 Ark. 1145, 97 S. W. 2d 64, but that decision is not in point. That case construes C. & M. Digest § 6150 (Ark. Stats. § 66-516) which relates to the proper venue of a suit on an insurance policy.
We find no decision of this or any other Court exactly in point which construes a statute like the one here involved. There are, however, certain reasons and related decisions that lead us to conclude that the word “resident” as used in our statute refers to a person who is physically present in the state in the sense that petitioner would not be a resident of this State while he was incarcerated in Tennessee. It seems to us that any other interpretation would defeat the obvious purpose of the statute. Under the facts before us it cannot be said that it was the fault of this State that petitioner was not brought to trial within three years after he committed the crimes for which he was convicted. In the case of Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162, we construed Ark. Stats. § 43-1708 which requires,. generally, that a person indicted for a crime must be tried before two terms of court have elapsed. Pellegrini, who was in a Texas prison, sought relief under the above statute, and we said:
. . Pellegrini is not now entitled to claim relief under the two-term-discharge Statute because he is only now bringing himself within the purview of the Statute. ’ ’
We further pointed out that “Pellegrini has a right to ask Arkansas to bring him here for trial. . . .’’In the above cited case, just as in the case under consideration, the State of Arkansas was not at fault in failing to prosecute the accused within the time allotted by the statutes. In a situation such as confronts us here, we think the rule set forth in C. J. S. is reasonable and realistic. In Yol. 54, under the heading of Limitations of Actions, sub-head Residence, § 212, at page 236, it is stated:
“In construing and applying statutes of the kind under consideration it has been held that ‘ residence ’ and ‘domicile’ are not convertible terms, and that the statute simply contemplates a residence of such permanency that, generally speaking, the person in question may be found in the state and served with ordinary legal process at any time.”
In the case of People v. Carman, 385 Ill. 23, 52 N. E. 2d 197, the Court construed an Illinois Statute of Limitations similar to our § 43-1604 above quoted. In that case the Court dwelled at length on the meaning of the word resident. Among other things the Court said:
“The word ‘resident’, when used as an adjective, as in this statute, is synonymous with the word ‘inhabiting’. Roget’s Int. Thesaurus. The Standard Dictionary also gives a further definition of the adjective, as having a residence or abiding in a place. When used as a noun, it is defined to mean a dweller, habitant or occupant; one who resides or dwells in a place for a period of more, or less, duration; it is distinguishable from the word inhabitant only as implying less fixity or permanence of abode. When used as a nonn it signifies one having a residence; one who resides or abides. ‘Reside’ is there defined as abiding in a place; one who resides. It is a synonym of live, dwell, abide, sojourn, stay or lodge.”
Black’s Law Dictionary defines the word “reside” to mean: “Live, dwell, abide, sojourn, stay, remain, lodge.” It defines “residence” as “A factual place of abode. Living in a particular locality.”
From all we have heretofore said it is our conclusion that the petitioner was not a resident of Arkansas during the time he was a prisoner in Tennessee, and that, therefore, the Crittenden County Circuit Court had jurisdiction to try and convict him in 1958 for crimes committed in 1952 upon an information filed in 1957 as shown in the record.
Writ denied. If the petitioner desires to file a Petition for a Writ of Habeas Corpus in the Circuit Court, this Certiorari proceeding will not prejudice any rights he may have to do so, except as to any point foreclosed by this opinion.
Robinson and Johnson, JJ., dissent.