Sur indictment for bigamy. After trial by court without jury.
This defendant was tried on an indictment for bigamy by the court sitting alone, a jury having been waived. Decision was reserved. The offense is alleged to have been committed at Union City on September 1, 1949. The indictment was presented January 5, 1953. The indictment contains a concluding allegation as follows: defendant "since the commission of the said crime being a fugitive fleeing from justice. * * *" Upon the truth of this averment the verdict depends, for unless the allegation has been proved beyond a reasonable doubt the statutory period of limitation must be held to have expired well before the indictment was presented.
At the time of the presentment the limitational period was defined in these terms:
"Except as otherwise expressly provided by law no person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within 2 years from the time of committing the offense or incurring the fine or forfeiture. This section shall not apply to any person fleeing from justice." (N.J.S. 2 A:159-2)
The 1953 amendment by which the limitational period was enlarged from two to five years has no present application since at the time of its adoption the limitational period formerly
provided had completely run in its relation to the offense sub judice. See Moore v. State , 43 N.J.L. 203 (E. & A. 1881).
The question before the court requires a determination whether the words "fleeing from justice" import more than mere absence from the jurisdiction. Had the Legislature intended to provide that defendant's withdrawal from the State after the commission of the offense alleged, followed by his continued absence therefrom, should suffice without more to halt the running of the statute, we must assume that it would have said so. Absence from the jurisdiction is mere status. In itself it connotes neither action nor intent, but "being a fugitive fleeing from justice" definitely does connote both action and intent. One becomes a fugitive in consequence of his flight, either flight from the jurisdiction or a state of concealment within it. Flight imports exigence, the exigent avoidance of arrest. It would appear that our courts have not had occasion to pass directly on the question. The allegation of flight contained in the indictment before us was construed in Renner v. Renner , 13 N.J. Misc. 749 (Ch. 1935), at page 761:
"The phrase 'fleeing from justice' applies to a person who, having committed a crime, has removed from or secreted himself within the jurisdiction wherein the offense was committed with intent to avoid detection or prosecution; the statute ceasing to run in the meanwhile."
I believe that construction to be the true one and that I am obliged to follow it. In Ballentine's Law Dictionary (1930) "fleeing from justice" is defined as "a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been actually begun."
Whether defendant did flee from justice in the indicated sense, and thus halted the running of the statute, is a question of fact. Schlosser, Criminal Laws of New Jersey, sec. 159; State v. Greenberg , 16 N.J. 568, at 578 (1954). The prosecutor alleges that "the uncontradicted ...