¶1Defendant was indicted, tried and found guilty of selling intoxicating liquors to certain parties and permitting the same to be drunk on his premises.
¶2The indictment charged, and the proof showed, that the offense was committed in August, 1894, and nearly two years prior to the institution of this prosecution. The prosecution was barred after the expiration of one year from the commission of the offense. Section 4000, R. S. 1889. To save the' case from the statutory bar the indictment charged that a former indictment had been found within the year and that it was still pending at the finding of this indictment. The state offered evidence tending to prove the commission of the offense as charged in August, 1894, but introduced no proof whatever that any previous indictment had been found.
¶3Under this state of facts the defendant was entitled to his discharge and the court should have so instructed the jury. The case as made showed that the defendant was being prosecuted for an offense, other than a felony, which had been committed more than a year prior to the institution of said prosecution, and *340there was nothing shown that would save the same from the bar of the statute. The burden was on the state to establish such facts as would arrest the running of the statute.
¶4The judgment will be reversed and- cause remanded.