I concur in the result because I think thejurisdiction of the Court to proceed to try the accused must be tested by what appears in the allegations of the information. See Hutchinson v. Courtney, 86 Fla. 556, 98 Sou. Rep. 582, where this rule was applied to a civil case. See also Rouse v. State, 44 Fla. 148, 32 Sou. Rep. 784, 1 Ann. Cas. 317, where an information was tested by its allegations.

But in Nelson v. State, 17 Fla. 195, it was said: "The statute of limitations in respect to crimes is to be construed liberally in favor of defendants." This means, I take it, that a prosecution must be effectively begun within the period of limitation. Presumably a prosecution is effectively begun within the period of limitation, when an indictment is found or an information is filed within two years from the date of the commission of the offense as charged inthe indictment or information.

But I think any such presumption may be overthrown *Page 622 at the trial by an affirmative showing on defendant's part that while an information was in truth filed within the two year period, that no process was issued upon it within a reasonable time thereafter, thereby negativing the otherwise permissive presumption that in filing the information within the two year period, the intent of the prosecuting authorities was that the offense charged, should be by that document deemed "prosecuted within two years," as required by Section 8421 (5972) C. G. L.

The State being required in every case falling under the statute, to affirmatively prove that the offense charged was "prosecuted" within two years after the commission of the alleged crime, I think the defendant at his trial has the right to show that while in form, the prosecution was instituted within the statutory period, that in fact and substance it was not, because the prosecuting authorities failed to have any process issued within a reasonable time thereafter, for the purpose of acquiring jurisdiction over the person of the defendant, so as to make an actual prosecutionpro curia possible within a period of time corresponding to the statutory period.

The Supreme Court of the United States has very recently enunciated a clearly stated doctrine to the effect that in prosecutions for crime, the defendant may be permitted to show affirmatively at the trial, facts in pais which will demonstrate that the government is either estopped to have, or has lost its right to have, the benefit of a conviction in the particular case before the Court, on account of the failure of its own officers to observe the spirit and intent of its statutes relating to how prosecutions shall be begun and supported. Sorrells v. United States, opinion filed December 19, 1932, U.S. Daily, Suppl. No. 5, Index page 87.

Surely, it is but a reasonable construction of our two year statute of limitations to give the defendant charged *Page 623 with a felony, the right to affirmatively show that what is in form a prosecution within the required time, was in fact andsubstance not such a prosecution, because of an unexplained and unreasonable delay in taking required proceedings designed to give a person charged with crime his constitutional right to a public and "speedy" trial. See Section 11, Bill of Rights.

While the present case does not essentially demand a decision of that point, my view is that the provisions of the statute of limitations should be read in the light of the constitutional right of the accused to a speedy public trial after the crime charged is lodged against him by the finding of an indictment or the filing of an information containing the charge.

If, through either the design or the neglect, of the state's prosecuting officers to have process issued to advise the accused of the charge against him, and to bring him personally before the court for trial, a criminal accusation may be kept secret for years and years by the mere filing, without more, of a charge on the records of the court, every benefit of the statute of limitations can be evaded or frittered away by undue postponements of those jurisdictional proceedings necessary to be taken for acquiring jurisdiction to proceed to trial, by obtaining jurisdiction of the defendant's person through appropriate process.

A statute of limitations, as this Court has said, should be liberally construed in favor of protecting the rights of defendants designed to be protected by such statutes. One of the important rights so designed to be protected is the constitutional right to a speedy public trial, while witnesses are still at hand for purposes of defense, and while there still exists means to rebut the State's evidence of apparent guilt.

It seems, to me that the true rule to accomplish what is *Page 624 a constitutionally required procedure, is to permit the defendant on trial to show by way of an affirmative defense that the particular prosecution has not been timely brought and therefore is barred, notwithstanding the presumptive evidence to the contrary, afforded by the filing of the charge within the two year period. It seems to me that theratio decidendi of Sorrells v. United States is ample authority to support the submission of such a defense to the jury to be weighed in connection with all the other facts in evidence. Such a course of procedure would permit the prosecution the benefit of showing some good reason why it failed to have process issued with reasonable promptness to insure a speedy trial. It would at the same time prevent a technical compliance with form from defeating a substantial right of an accused to be informed of the nature and cause of the accusation against him, and to have a speedy public trial as to his guilt or innocence of the charge made.

With the foregoing modifications, I concur in the result and partially concur in the opinion of MR. JUSTICE WHITFIELD to the extent that it does not conflict with what has been heretofore stated by me as applicable to right of defense based upon a substantial failure to actually "prosecute" within two years.