People v. . Austin, 63 N.E. 1120 (NY 1902). · Go Syfert
Search
People v. . Austin, 63 N.E. 1120 (NY 1902). Cases Citing This Book View Copy Cite
20 citation events (6 in the last 25 years) across 7 distinct courts.
Strongest positive: People v. Gulston (nysupct, 1999-07-23)
Treatment trajectory · 1905 → 2026 · click a year to view as-of
1905 1965 2026
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Gulston
N.Y. Sup. Ct. · 1999 · confidence medium
I can see no reason in the public policy that permits punishment for a crime when proven upon the trial of an indictment for a different crime, and yet prohibits punishment for that crime when sought by a direct indictment therefor. ‘The letter killeth where the spirit giveth life.’ ” (See also, People v Austin, 170 NY 585, 586 [Bartlett, J., dissenting opn].) The argument appears persuasive to this court and equally applicable to this case.
discussed Cited "see" Turner v. Sabourin (2×)
E.D.N.Y · 2003 · signal: see · confidence high
See People v. Austin, 170 N.Y. 585, 586 , 63 N.E. 1120 (1902) (statute of limitations defense with respect to a lesser-included offense must be raised at trial in order to be preserved for appeal); see also People v. Rodriguez, 237 A.D.2d 634 , 655 N.Y.S.2d 1014, 1014 (1997); People v. Verkey, 185 A.D.2d 622 , 585 N.Y.S.2d 897, 899 (1992); People v. DePillo, 168 A.D.2d 899 , 565 N.Y.S.2d 650, 650 (1990) (all holding that limitations period is not jurisdictional and defense premised on it may be waived).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Peter Austin, Appellant
New York Court of Appeals.
Mar 25, 1902.
63 N.E. 1120
Charles Hopkins and Frank B. Lown for appellant. William R. Lee for respondent.
Bartlett.
Cited by 10 opinions  |  Published

Lead Opinion

Judgment of conviction affirmed, on opinion of Hirsohberg, J., below.

Concur: Parker, Ch. J., Gray, O’Brien and Cullen, JJ.

Dissent

Bartlett, J.'

(dissenting). The appeal presents a novel question, never decided by this court. There is much to be said on either side of the controversy, and the cases in other states are conflicting. -As there is no limitation of time within which a prosecution for murder must be commenced, and as an indictment for other felonies is barred in five years, it seems the reasonable, broader and more merciful construction of the statutes bearing upon this question to bold that, if the jury are unable- to find the defendant guilty of murder in either degree, they must acquit if the Statute of Limitations has run against a lesser offense of which they deem him guilty. It is true the statute provides that an indictment for felony, other than murder,- must be found within five years after its commission (Code of Grim. Pro. § M2), but I cannot assent to the construction that its effect is limited to the finding of an indictment.

The effect of this construction would be that a convictio" for manslaughter could be had at any time, notwithstanding the statute, by simply charging the defendant in the indictment with murder. The verdict of the jury has determined that the defendant is guilty of manslaughter. It is conceded that an indictment for this offense could not have been found, because the statute forbids it.

The general policy of the state, as disclosed by the statutes, may be thus stated: Murder is so heinous a crime it can be prosecuted at any time, but as to all other felonies the statute of repose acts as a shield, lest defendants be unable to defend themselves owing to the changes wrought by time and death.

I vote for reversal.

Haight and Werner, JJ., concur.