The evidence showed that Disbrow (D) had embezzled a number of times over a period of six years. The state had a three-year statute of limitations. The first indictment was set aside because it was defective. D was indicted a second time. Some of the charges in the second indictment would not be triable unless the statute of limitations was tolled from the first indictment. The trial court decided on tolling the statute. The trial judge instructed the jury that D could be convicted of all his acts of embezzlement that had occurred within three years prior to the return of his first indictment. D was convicted and appealed.

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