Augustus F. Anderson, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 20 Fla. 381

Mr. Justice YanYalkenburgh delivered the opinion of the court. At the Spring Term of the Circuit Court held in aud for Wakulla county, in the Second Judicial Circuit, in the year 1882, the plaintiff in error, Augustus F. Anderson, was indicted for that “ he heretofore, to wit: on or about the first day of March, A. D. 1880, with force and arms, at and in the county of Wakulla aforesaid, feloniously, wilfully, fraudulently did alter and change the mark of an animal, to wit: a cow, of the value of ten dollars, of the goods and chattels of one James Gibbins, with intent of the said Augustus F.

Anderson to claim said animal as his own, and to deprive its. said owner thereof, against the form of the statute,” &e. This indictment is signed simply “ Wm. P. Byrd,” and is endorsed, among other endorsements: “ Filed in open court this-day of April, A. D. 1882. “ Wm. P. Byrd, “ Acting State’s Attorney.” The spring term of the Circuit Court at which this indictment was found was held in the month of April, 1882. The defendant was tried at that term aud found guilty.

Counsel for defendant moved in arrest of judgment upon the ground that the grand and petit jurors at the term of the court at which the indictment was found, were unlawfully drawn in this, that there was no sheriff in and for the county of Wakulla at the time of drawing said jurors. The court denied the motion and sentenced the defendant to six months at hard labor in the State penitentiary.

The defendant procured a writ of error and now makes the point that “ the indictment shows that the offence of which the defendant stands charged was not prosecuted within two years next after it is alleged in the indictment to have been committed.” The statutes of this State provide that “offences not punishable with death shall be prosecuted within two years next after the same shall have been committed.” McC. Dig., 435, §2. The indictment charges that this alleged offence was committed “ on or about the first day of March, A.

D. 1880.” It was found at the spring term of the Circuit Court held in and for Wakulla county, and was filed in the court on-day of April, 1882. This shows conclusively that the indictment was not properly found and filed within two years next after it is, in the indictment, alleged that the offence was committed. Savage vs. The State, 18 Fla., 970; Nelson vs. The State, 17 Fla., 195; United States vs. Ballard, 3 McLean, 469. The judgment is arrested and the defendant discharged.