In Re Davis

California Court of Appeal Apr 4, 1936 No. Crim. 1487Published

Before: Thompson

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Holding. The court held that a conviction on a count barred by the statute of limitations is invalid, but because the sentences were ordered to run concurrently, the overall judgment remains valid. Furthermore, the court held that amending an information to change the date of an offense does not constitute a new charge and relates back to the original filing date for statute of limitations purposes.

Issues

Whether a conviction on a count barred by the statute of limitations is void and reviewable via habeas corpus.
Whether an amendment to an information changing the date of an alleged offense constitutes a new charge that resets the statute of limitations.
Whether the writ of habeas corpus may be used to review the weight and sufficiency of evidence.

Disposition. denied

Quotations verified verbatim against the opinion

“the statute of limitations is jurisdictional in criminal cases and that a crime may, therefore, not be prosecuted unless the indictment or information is actually filed within the time prescribed by statute.”

“The mere changing of the alleged dates of the crimes, under the circumstances of this case, does not have the effect of charging different offenses, nor does it amount to the filing of a new information.”

“The amendment of an information in a criminal case by merely changing the alleged date of the offense charged, as was done in this ease, like any other amended pleading, relates back to the date of the original filing of the information”

THOMPSON, J.

This is a petition for a writ of

habeas corpus.

The defendant was accused in two counts of an information which was filed in Stanislaus County June 13, 1932, with different acts of incest with the same person. He was also charged with a prior conviction of another felony. The first count charged the commission of incest on August 5, 1929. The second act was alleged to have occurred September 1, 1929. The defendant pleaded not guilty to the charges of incest, but admitted the former conviction of a felony. At the trial, which occurred July 7, 1932, by leave of court the information was amended under the provisions of section 1008 of the Penal Code to allege that the first act of incest occurred June 5, 1929, and that the second offense was committed June 15, 1929. The defendant was convicted on both counts of the amended information. No demurrer to the information was filed. No motion was made in arrest of judgment as author

[111]

ized by section 1185 of the Penal Code. No objection was offered to the pronouncing of judgment. The defendant was sentenced to imprisonment in the state prison at Folsom for the term prescribed by law. The court directed that sentences on the two counts should run concurrently.

Since the first offense was alleged to have occurred June 5, 1929, and the information was not filed until June 13, 1932, the prosecution of that crime was barred by the provisions of section 800 of the Penal Code for the reason that more than three years elapsed from the time of that first offense before the information was filed. The conviction on the first count was therefore invalid.

(People

McGee,

1 Cal. (2d) 611 [36 Pac. (2d) 378].) In the case last cited it was determined that the statute of limitations is jurisdictional in criminal cases and that a crime may, therefore, not be prosecuted unless the indictment or information is actually filed within the time prescribed by statute. A contrary rule was declared in the case of

Ex parte Blake,

In Re Davis

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THOMPSON, J.

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