#### STATE v. DON WILLIAMS.

(Filed 20 October, 1909.)

1. Indictment — Presentment—Limitation of Actions.

An indictment or presentment marks tlie beginning of tlie prosecution and arrests the running of the statute of limitations. Revisal, 3147.

2. Nol. Pros. “With Leave” — Limitations of Actions.

After the entry of a nol. pros, “with leave,” the prosecution remains as it was under the original finding of the grand Jury upon the bill, and the statute does not begin to run therefrom so as to bar the further prosecution of the indictment under a capias and arrest eventually ordered and made, in this case more than two years after the entry of the nol. pros, with leave.

Appeal by defendant from W. J. Adams, J., February Term, 1909, of Columbus.

The facts are stated in the opinion of the Court.

Attorney-General for the State.

Grady & Williamson for defendant.

Waleeb, J.

The defendant was tried on a bill of indictment for a nuisance,.found by the grand jury at April Term, 1006, of the Superior Court of Columbus County, and appealed from the judgment of conviction. He relied upon the statute of limitations. A nolle prosequi, with leave to issue a capias upon the same bill, was entered at November Term, 1906. A capias was issued in December, 1908, and the defendant was arrested on 4 January, 1909. The court held that the statute did not bar the further prosecution of the indictment, and whether it does or not is the only question presented by the assignment of errors. An indictment or presentment marks the beginning of the prosecution, and arrests the running of the statute of limitations. *661Revisal, sec. 3147; State v. Cox, 28 N. C., 440. “A nolle prose-qui in criminal proceedings does not amount to an acquittal of tbe defendant, but be may again be prosecuted for tbe same offense, or fresb process may be issued to try him on the same indictment, at the discretion of the prosecuting officer.” State v. Thornton, 35 N. C., 257; State v. Thompson, 10 N. C., 613; State v. Smith, 129 N. C., 547. The Revisal, sec. 3273, provides as follows: “A nolle prosequi ‘with leave’ shall be entered in all criminal actions in wbicb tbe indictment bas been pending for two terms of court and tbe defendant bas not been apprehended, and in wbicb a nolle prosequi bas not been entered,- unless tbe judge, for good cause shown, shall order otherwise. Tbe clerk of tbe Superior Court shall issue a capias for tbe arrest of any defendant named in any criminal action in wbicb a nolle prosequi bas been entered, when be bas reasonable ground for believing that such defendant may be arrested, or upon tbe application of tbe solicitor of tbe district.. When any defendant shall be arrested, it shall be tbe duty of tbe clerk to issue a subpoena for tbe witnesses for tbe State endorsed on tbe indictment.” Tbe prosecution was not ended by tbe entering of tbe nol. pros, with leave. This is tbe same prosecution as it was originally. Tbe other suggestions made in tbe defendant’s brief are without any force and require no separate discussion. Tbe defendant bas bad a fair trial, according to tbe forms and with all tbe safeguards of tbe law, and be must abide tbe result.

No error.