dissenting. On January 9, 1953, the petitioner, a resident of Arkansas, was arrested in Crittenden County for the crime of Burglary and Grand Larceny said to have been committed in the year 1952. No charge was preferred against him; no felony information was filed against him by the Prosecuting Attorney and the Grand Jury returned no indictment, but he was not released.
On January 11 he was taken to Memphis by Arkansas officers and turned over to Tennessee authorities. He was then sent to the Tennessee Penitentiary for a crime committed in that state.
In 1957, after serving four and one-half years he was released. No charge had been preferred against him in Arkansas and po holdover had been placed against him in Tennessee. After having been released from the Tennessee prison in 1957 he returned to his home in Arkansas and was arrested for driving while drunk. Then, in 1957, for the first time, more than five years after the alleged crime was committed, he was charged in Arkansas with having committed the crimes of Burglary and Grand Larceny in Arkansas, in 1952.
Considering these facts, I do not believe petitioner was a non-resident of the State of Arkansas within the meaning of Ark. Stats. (1947) § 43-1604, during the time he was in the Tennessee Penitentiary. It will be recalled that the petitioner did not voluntarily leave the .State of Arkansas. In January, 1953, the Arkansas officers had him in jail for the alleged crime, but no charge was filed against him. It was not until 1957 that he was charged with the offense. In 1953 the Arkansas officers had delivered him to Tennessee. The majority has denied the petition solely on the ground that during the time the petitioner was in the Tennessee Penitentiary he was not a resident of Arkansas. In my opinion such holding is against the weight of authority and does not correctly construe our statute. The majority point out that the trial court did not have jurisdiction to try the defendant unless he was a non-resident of this state within the meaning of Ark. Stats. (1947) § 43-1604 during the time he was confined in the Tennessee Penitentiary. Pate v. Toler, 190 Ark. 465; 79 S. W. 2d 444.
Ark. Stats. (1947) § 43-1604 provides:
‘ ‘ 43-1604. Fugitives — Nonresidents. — Nothing in the two preceding sections [three-year Statute of Limitations] 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.”
The majority say that our case of Metropolitan Life Insurance Company v. Jones, 192 Ark. 1145, 97 S. W. 2d 64, is not in point with the case at bar. I fail to see why it is not in point. The question in the case at bar is whether Grayer, the petitioner, was a resident of Arkansas during the time he was in the Tennessee Penitentiary. In the Metropolitan case the question was whether one Elam was a resident of Arkansas during the time he was in the Kentucky Penitentiary; this Court said: ‘ ‘ The evidence shows that Paul Elam lived in Mississippi County, and while living there he was convicted and sentenced to the federal penitentiary . . . Such place of residence or usual abode [in this case Arkansas] is not changed or abandoned by a constrained removal as by imprisonment . . . Whether the word “residence” be taken in the sense of domicile or of abode, it implies a place where the party is situated through choice, and where, in some conceivable manner, his personal belongings would be the more readily found; and it has been distinctly ruled that neither in its legal nor in its popular meaning, is the word ‘residence’ satisfied by an incarceration in any particular place.”
The majority say it was not the fault of this State that the petitioner was not brought to trial within three years from the time the crime is alleged to have been committed and cites Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162. That case is not in point with the case at bar. Pellegrini contended that he was entitled to have the charge against him dismissed because he had not been brought to trial within two terms of court as provided by Ark. Stats. (1947) § 43-1708. This Court pointed out that the State could not bring him to trial because he was in the Penitentiary in Texas, but the Court did indicate that Pellegrini should make an effort to get the Arkansas authorities to bring him to trial by making some arrangement with the State of Texas as is done where Federal prisoners are charged with an offense by the State.
In the case at bar, it is not a question of the State of Arkansas having failed to bring the petitioner to trial— it is the question of having failed to file any charge against him for more than three years after the offense is alleged to have been committed. There was nothing whatever to keep the Prosecuting Attorney from filing a felony information or the Grand Jury from returning an indictment, and if this had been done the defendant could have petitioned the Court for an order setting his ease for trial as the court pointed out the defendant could do in the Pellegrini case. Here the defendant could not petition the Court for a trial when no charge of any kind was pending against him, and there was no point in attempting to get and preserve evidence in his favor when he had no reason to believe that any charge would be filed against him.
As authority for holding that our Statute of Limitations does not apply in the case at bar, the majority cite People v. Carman, 385 Ill. 23, 52 N. E. 2d 197. The Illinois statute is entirely different from ours. Ill. Rev. Stat. 1941, Ch. 38, Par. 632. Section 5 of Div. 4 provides: “No period during which the party charged was not usually and publicly a resident within this State shall be included in the time of limitation.”
The words “usually” and “publicly” are not in our statutes and the Illinois case turns squarely on those words. The Illinois Court said: “In this case, an analysis of the words of the statute and a brief reference to the meaning will be helpful. The word ‘usually’ is defined by lexicographers to mean such as in common use; ordinarily, or in ordinary course of events. It is derived from the word ‘usual’ which means that which happens in the ordinary course of events; that which is customary or according to common practice. It is the antithesis of uncommon; extraordinary; unusual, or abnormal . . . Prom the same authorities we find that the word ‘publicly’ is derived from the word ‘public’. It signifies something which is open to the knowledge or view of all; generally seen, known or heard, activities carried on before the public, or something which is done in an open and public manner; without concealment. ’ ’
It will be recalled that our statute merely tolls the running of the Statute of Limitations during the time the defendant “shall not have been a resident of this State.” There is a great difference between onr statute and the Illinois statute; our statute does not contain the words “usually” and “publicly”.
In citing the Illinois case, 22 Corpus Juris Secundum 606 emphasizes the words “usually” and “publicly” used in the Illinois statutes but not used in the Arkansas statutes.
In the case of Town of Freeport v. Board of Supervisors, 41 Ill. 495, the Illinois Court said: “A person imprisoned under operation of law does not thereby change his residence.” To the same effect is Clark v. Robinson, 88 Ill. 498. “And such place of residence or usual abode, is not changed or abandoned, by a constrained removal or by imprisonment.” Grant v. Dalliber, 11 Conn. 233.
“Nor can a person committed to prison gain residence where the prison is situated. He retains his residence at his abode or home before his commitment. A residence can only be acquired by voluntary choice or by right.” Shaffer v. Tepper, 127 F. Supp. 892. In the case last mentioned, a resident of Ohio was involuntarily incarcerated in the Kentucky State Penitentiary. In Topsham v. Lewiston, 74 Maine 236, the Court said: “He had never abandoned this as his place of residence; he had left it by constraint. The State prison was not the place of his abode; it was his place of punishment and while there he was absent from home.”
In the case at bar the petitioner did not voluntarily leave the State of Arkansas. He was taken to Tennessee by officers of the State of Arkansas. In my opinion he was still a resident of this State within the meaning of our statute. Therefore, I think the charge preferred against him in 1957 for a crime alleged to have been committed in 1952, was barred by our three-year Statute of Limitations. I would, therefore, grant the petition.
Mr. Justice Johnson joins in this dissent.