¶1(dissenting):
¶2I am. unable to concur in the conclusion reached by a majority of this court, that a man- may be convicted of a misdemeanor, where the' indictment upon its face, in full accord with the establislied facts, shows- that the alleged crime, of the grade of a misdemeanor, was committed more than two years before the finding of the indictment, and where the defendant has challenged the conviction at every point in. the proceeding. Section 142 of the Code of Criminal Procedure provides that an “ indictment for a misdemeanor must be found within two years after its commission,” and there is no dispute that the acts constituting the misdemeanor for which the defendant has been convicted.occurred on the 18tli day of March, 1902. The indictment was found on the 25th day of May, 1904, and no one questions that had this fact been called to the attention of the court by an objection and exception, the defendant; would,have been entitled to a reversal of the judgment of conviction, for the reason that under the law the defendant, having passed by the two years fixed by the statute, was not guilty of any crime then punishable by the laws of this State. -The facts stated in the indictment, and -supported by the pi’oof, did not con*621stitute a crime as against the defendant by reason of the fact that the law had declared an amnesty.
¶3It is not disputed that the defendant pleaded not guilty to the charge; that he moved the court to set aside the verdict, for a new trial, and in arrest of judgment, upon the ground that the facts charged in tire indictment and proved upon the trial did not constitute a crime, and that exceptions were taken to the denials of these motions. But it is contended that because the defendant failed to call tlie attention of the court in express' words to the fact that the crime was barred by the statute he did not raise on the trial and is deprived of the privilege of raising that question upon this, appeal. This case in its peculiar facts stands alone. The defendant was first proceeded against in the Court of Special Sessions. Subsequently an order of this court, at Special Térm, was secured, sending the case to the Court of General Sessions, on condition that the defendant would enter into a stipulation not to raise the defense of the Statute of Limitations, the time .being then about to expire. The defendant made this stipulation, and the grand jury having found an indictment, he pleaded not guilty to the same and went to trial. At the opening of the trial the defendant’s counsel moved to dismiss the indictment upon the ground that it did not state facts sufficient to constitute a crime, at the same time adding: “ I do not wish to discuss it. I am limited by the agreement which I wish to hand up to your Honor, and I do not wish to go outside of that agreement in making my motion.” To this the court responded, “ I think you are precluded by this stipulation.” • Counsel replied, “You think I" am?” The court answered “Yes.” Ho exception was taken, though it is to be observed that there was no ruling upon the motion directly, but merely the expression of an opinion-that the counsel was precluded by the stipulation. ■
¶4It is true that the record before us does not show what this stipulation was; but it is evident that there was a stipulation before the court, and that this stipulation was permitted to prevent the defendant from more specifically calling to the attention of the court the inherent defect in the indictment. ■■ But it can hardly be doubted that a statute of limitations, in criminal cases, has a different effect than in civil cases. The statute is.read into every crime, and it says, in effect, that unless action is taken by the State within the time *622limited there is no crime to be punished. (Bish. Stat. Cr. § 264; Whart. Cr. Pl. & Pr. [8th ed.] § 316; Vaughn v. Congdon, 56 Vt. 111, 115; Boughn v. State, 44 Neb. 889, 891.) It is the same as though the facts had never existed,, and this issue is raised by a, plea of hot guilty and in arrest of ¡judgment, (Code Crim. Proc. § 331; People v. Durrin, 2 N. Y. Cr. Rep. 328.) In arrest-of judgment- the issue that the facts stated do "not Constitute a crime are..peculiarly raised. (Code Crim. Proc. § 331; People v. Meakim, 133 N. Y. 214, 219; People v. Wiechers, 179 id. 459, 462.).
¶5When the defendant pleaded not guilty'to the charge of the-indictment, and upon every motion to dismiss, or in arrest of judgment, upon the ground that the facts stated and proved did not constitute a then existing crime as against' himself, lie raised the question of the Statute of Limitations, as much as though he had in specific words called the.attention, of the court to the fact that the indictment was not found within -two years of the .commission of the ofiense,. for in jaw there was no then existing crime as shown by the indictment and the proofs; and upon the general objection that the facts do not constitute a crime the existence' of every fact necessary to constitute a crime is Challenged.
¶6It is probably true that the defendant,, by refusing to challenge the sufficiency-of the indictment, or the proofs under it, might be deemed to have waived his rights, and he could- n.ot be heard to raise this question for the first time on appeal. (Sentenis v. Ladew, 140 N. Y. 463, 466.) But it. is one thing to deliberately refuse to raise a question'upon trial, and quite another to enter- into a stipulation in advance .not to raise such a question; the one is a waiver of rights, the other'is an attempt toi-interfere with the public policy' of the State, which the cohirts do not permit. Mr. Chief Judge Eael in Shapley v. Abbott (42 N. Y. 443, 452) clearly points out-this distinction. “ A party may;” says the learned jurist, “ without trenching-upon public policy, xvaive the defence of usury, or of the Statxite of. Frauds, or of the Statute of Limitations, by -omitting to set up the defence Avhen sued. And he may waive; his statxite .exemption by turning out exempt property when the officer comes with the execution; but no case has occurred to me in which a party can, in. advance, make a xmlid 'promise.that a statute founded'in public- policy shall be inoperative.” ' Clearly ,a statute limiting the *623time within which a -crime shall be punished is founded in public policy, and the defendant by moving to dismiss the indictment on the ground that it did not state facts necessary to constitute a crime, evidenced an intention not to waive the sufficiency of the indictinenti Subsequently, and after the evidence showed that the alleged crime was in fact committed upon the date mentioned in the indictment, the same question was presented,. and again in the motion in arrest of judgment.' The stipulation which was supposed to stand in the way of raising the specific defect in the indictment, that it was outside of the time fixed by the statute, not being binding upon the defendant, and he having distinctly raised the question by his general challenge of the sufficiency of the indictment and of the facts established under it, I am unable to understand how this eonvictioti may be permitted to stand. There is no evidence of any intention on the part of the defendant to waive any right, except as this may be gathered from the remarks of counsel and the court in reference to the stipulation; and if we get that stipulation out of the case, and deal with the matter purely from the record as it is made in this case, we shall certainly find that the defendant, by his motions, raised tlie very.question which is here under consideration, for he did by proper motions ask to be relieved because of the fact, that the facts did not constitute a crime, as they concededly did not in his case if the question was raised.
¶7But it is suggested that the limitation of time, as fixed by section 142, is to be read and construed in connection with section 143 of the Code of Criminal Procedure, and that it was for. the defendant to show that he was not within the exception. Section 143 provides that “ if when the crime is committed the defendant be without the State, the indictment may be found within the term herein limited after his coming within the State ; and no time during which the defendant ■ is not an inhabitant of, or usually resident within, the State, or usually in personal attendance upon business or employment within the ."State,, is- part of the limitation.”
¶8It .seems' to me a new theory of criminal law that the defendant is obliged to show that he has not been a fugitive from.justice during the time that has elapsed between the, commission of the alleged crime and the finding of the indictment, for the language of the statute clearly indicates that it is not intended to cover any *624merely incidental absence from the State. The indictment in this, case, shows the defendant to have been “late of the Borough of Manhattan of the city of New York, in the county of New York,” and that the alleged crime was committed within such borough; The evidence shows the defendant to have been born in the city of New York, and, as he 'testifies, “ I have lived here, off and on, all my life,” and there is not a suggestion that he ever lived outside of the State;, and he-says that he is still the manager of the store on Broadway and Wall street where, the alleged crime was committed. It thus appears that the. defendant was a resident or inhabitant óf the, State at the time of the alleged crime, and that he was then present as manager of the business. The rule is well established-that under such circumstances the presumption arises that he has continued to be: a resident or inhabitant of the State. The statuof the defendant as a Resident of the city of New York,.and active manager of the business where the crime is alleged to have been committed, being fixed, the law presumes a continuance of the condition- until it is shown to have changed. (Nixon v. Palmer, 10 Barb. 175; Mitchell v. United States, 21 Wall. 350, 353; Harris v. Harris, 83 App. Div. 123, 128.) This presumption that the defendant has not been a fugitive from justice is not overcome by the presumption that the grand jury, as public officers or servants, have done their duty; for while this, like the presumption of innocence, is. a legal presumption, it does not supply proof of a substantive fact. Best, in his Treatise on Evidence (9th ed. § 353), says: “ The true principle intended to be conveyed' by the rule … * seems to be that there is a general disposition in courts of justice to uphold official, judicial -and other acts rather than to render them inoperative; and'with this view, where there is general evidence of facts having been legally' and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied' in most instances, although in others the assumption rests solely on grounds of public policy.” Howhere is the presu'mption held to be a substitute for proof of an independent and material fact, (Sabariego v. Maverick, 124 U. S. 261, 284, 285; United States, v. Ross, 92 id. 281, 284.) If it could, therefore, be said as a mere, matter of pleading that the People were not bound to allege in the indictment *625that the defendant had been without the State within the meaning of the provisions of section 143, when the pi'oof was in, and it was shown that the defendant was a resident and inhabitant of the State, actively engaged in managing the business' at the point where the crime is alleged to have been committed, the motion to dismiss on. the ground that the facts proved did not constitute a crime should have been granted, for it was conclusively shown that the defendant was not within the exception; lie had been within the jurisdiction of the State .at all times.
¶9I think the judgment of conviction should be reversed.
¶10Houghton, J., concurred.
¶11Judgment and orders affirmed.