¶1dissenting. I am compelled to dissent in the results reached by the majority in this case and set out my reasons below.
¶2Ark. Stat. Ann. § 41-104 (Repl. 1977) provides in pertinent part as follows:
(2) Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation after their commission:
(b) class B, C, or D or unclassified felonies, 3 years;
“The period of limitation does not run:
(a) during any time when the accused is continually absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no event shall this provision extend the period of limitation otherwise applicable by more than three years; or
(b) during any period when a prosecution against the accused for the same conduct is pending in this state.” (Emphasis added)
¶3The majority in holding that the statute of limitation does not commence to run on a charge of retaining stolen property, under Ark. Stat. Ann. § 41-2206 (1) (Repl. 1977) until the party has divested himself of possession of the property not only conflicts with the well established rule that penal provisions are construed strictly and nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the accused, but conflicts with Article 4 of the Constitution of the State of Arkansas which provides for three distinct departments of government, i.e., legislative, executive and judicial. Section 2 thereof provides:
“No person, or collection of persons, being one of the three departments, shall exercise any power belonging to either of the others ...”
¶4It is clear from the reading of Ark. Stat. Ann. § 41-2206 (1) involving the offense of theft by receiving as well as Ark. Stat. Ann. § 41-104, statute of limitation, that the majority is engrafting a provision which extends the period of limitation that does not fall within the exception set out in the applicable statutory provision by the General Assembly. Thus, the majority is indulging in legislative action.
¶5The majority seeks to justify its posture by advancing the following argument contained in its opinion:
“. . . By the very use of the word ‘retains,’ there was a clear intention of the General Assembly to make this aspect of the crime a continuing offense. . . . There is nothing in the definition of‘receiving’ in Ark. Stat. Ann. § 41-2206 (2) that leads to a contrary conclusion. ...”
¶6It is plain from the argument of the majority that aside from construing a penal provision liberally, namely, Ark. Stat. Ann. § 41-2206, the majority indulges in a form of reasoning that is very much akin to a form of. pleading characterized as a negative pregnant. In other words, the absence of language in the applicable statutory provision indicating that retention of stolen property is not a continuing course of conduct justifies, by way of implication, the conclusion that an affirmative or positive intent on the part of the General Assembly to make the offense a continuing one.
¶7In Toussie v. United States, 397 U.S. 112, 114, the United States Supreme Court made the following observation regarding the statute of limitation and continuing offenses:
“In deciding when the statute of limitations begins to run in a given case several considerations guide our decision. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before ‘the principle that criminal limitations statutes are to be liberally interpreted in favor of repose, . . . ’ We have also said that ‘[statutes of limitations normally begin to run when the crime is complete.’ . . . And Congress has declared a policy that the statute of limitations should not be extended ‘[ejxcept as otherwise expressly provided by law.’ . . . These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, ‘[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.’. . . These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” (Emphasis added)
¶8I am authorized to state that Mr. Justice Holt joins in this dissent.