#### STATE vs. GROVE TOMLINSON.

December 1842.

The indictment, under which si defendant is brought to trial, for trading with a slave, under the 75th sect. c. 34, of the Rev; Statutes, must be commenced within twelve months after th'c commission of the offence, according to the 80th sec./ of the saíne chapter. It is n<f answer to this objection, that another indictment for the saíne offence was brought within tile proper time.

Appeal from fhe' Superior Court of Law of Iredell County, at Fall Term, 1842, his Honor Judge Nash presiding.

The defendant was indicted for trading with a slave, and in his defence, relied upon the act prescribing the time within which such indictments should be commenced. From the evidence it appeared, that morq than one year had elapsed after the trading had tafeen place, before the filing of this bill of indictment. Tó answer this objection, it was shewn that, within one year from the commission of the offence, another bill of indictment had been filed against the defendant for the same offence, and was then pending in Court.— At the request of the counsel, the question as to the lapse of time was reserved by the Court. The jury, upon the evidence, convicted the defendant/ On the question reserved the Court was of opinion, that the present bill was barred by the Statute, as well upon-general principles, as upon the provisions of the Statute under which the indictment was preferred. In the Act, limiting the time within which misdemeanors in general shall be prosecuted to two years, it is provided, that when the'prosecution shall be commenced in time, but a nol. pros, shall be entered on the judgment arrested, a new bill may be sent, in which case the time shall be computed from the termination of the first. The Act, under which this bill was preferred, has no such reservation, and it was passed at the same session of the Legislature with the other. The Court directed the verdict for the State to *33be set aside, and a verdict for the defendant to be entered.— The State appealed to the Supreme Court.

Attorney General for the State.

Caldwell for the defendant.

Daniel, J.

The defendant was indicted and tried for trading with a slave, an offence embraced in ch. 34, sec. 75, Rev. Stat. More than one year had elapsed between the time of the trading with the slave, and the finding of this bill of indictment. In sec. SO, Rev. Slat. ch. 34, it is enacted, “ that no suit or indictment shall be prosecuted for any violation of the seventy-fifth and seventy-ninth sections of this act, unless such suit or indictment be commenced within twelve months after such violation.” . The'defendant, on the trial, insisted that the indictment was barred by the said act of limitation. The Solicitor for the State then exhibited evidence from the records of the Court, that the defendant stood charged upon another indictment, for the same offence, found by a grand jury within the time specified by the act. The jury found a verdict for the State, and the question of law was reserved for the opinion of the Court. Afterwards, the Court gave judgment for the defendant, and the Solicitor for the State appealed.

The 80th section of the Statute directs, that unless the “ indictment be commenced” within twelve months from the date of the offence, the prosecution shall not be carried on.

An indictment (indicare, to shew,) is a written accusation of one or more persons, preferred and presented on oath by a grand jury. 4 Bla. Com. 302. Vide also, 2 Tomlin’s Law Dictionary, 163.

When the accusation is thus found, it becomes an indictment. In the literal sense therefore ol this'section, the accusation must be thus found within twelve months after the violation of the Statute, or it cannot be presented afterwards. The phrase, “indictment commenced,” is indeed one not of frequent use, and it has been suggested, that probably the term, indictment, was used in the Statute, instead of, or in *34the sense of. the term “prosecution,” and, therefore, in the construction of the Statute, we may substitute the latter and more accurate expression. But there ought to be very cogent for talíing such a freedom with plain intelligible words, before it should be resorted to. There is nothing necessarily inaccurate in the phrase used by the Legislature. An indictment may be begun, as well as afterwards withdrawn or prosecuted. It is begun by the finding of the grand jury, as an action is begun by suing out the writ__ There is nothing absurd in the supposition, that the Legislature intended to prohibit prosecutions, unless the indictment were found within a limited period; for in the 8th section of the 35th chapter of the Revised Statutes, it is enacted, with regard to certain offences, that “the prosecution shall commence within two years after the commission of the said trespasses and misdemeanors, and not after; and,> no bill of indictment shall be found, or presentment made, by the grand jury of any County in the State, where the offences aforesaid shall have been committed two years next before the finding of the said indictment, or making the said presentment.” - It would seem, indeed, that the Legislature had here declared, that the commencement of a prosecution, and the finding of an indictment, were equivalent expressions ; and, if so, we should advance but little in the exposition of the Statute before us, by substituting one for the other. But be this as it may, we deem- it most safe, in the construction of a penal Statute, to guard against that liberality of interpretation, which might give to it an operation more extensive than its words manifestly require, either by bringing within its purview cases, notin terms within its enactments, or excluding from its savings and exceptions, cases which are comprehended within their literal sense.-

Per Curram". Judgment affirmed.