People v. James

SHAW, J. pro tem.

Defendant was convicted of a charge of violating section 11160 of the Health and Safety Code, by having Indian hemp in his possession. He appeals from the judgment.

The principal point made on appeal is that the evidence is insufficient to show that the offense was committed within three years before the filing of the information, this being the statutory period of limitation for prosecutions for this offense. (Pen. Code, sec. 800.) This contention must be sustained. The information was filed December 26, 1941, and alleged that the offense charged was committed on December 13, 1941. The defendant’s plea of not guilty put in issue this allegation of the information

(Rebstock

v.

Superior Court,

(1905) 146 Cal. 308, 311 [80 P. 65];

People

v.

Allen,

(1941) 47 Cal.App.2d 735, 748 [118 P.2d 927]), and while the People were not required to prove the date exactly as alleged, the burden was on them of showing that the offense occurred within the period of limitation. (See

People

v.

McGee,

(1934) 1 Cal.2d 611, 613 [36 P.2d 378];

People

v.

Allen,

(1941) 47 Cal.App.2d 735, 748 [118 P.2d 927]; note, 13 A.L.R. 1446, and cases cited.)

We find but two references in the evidence to the date of the offense. Police Officer Moore testified that he arrested the defendant (apparently for some other offense) “on the 12th of December’’ and that at Newton police station defendant pulled from his pocket a cigarette which was shown by the testimony of another witness to contain an unlawful amount of Indian hemp. This was the only possession of Indian hemp shown. Police Officer Yoakim testified that he had a conversation with defendant “on December 13th about 4:30 p.m. at Central jail’’ in which defendant admitted that “he had a marijuana cigarette on him . . . the previous evening’’ when arrested. Neither of these officers mentioned any year, nor do we find anything in the record from which the year can be ascertained. The ease was submitted to the trial court on the transcript of the evidence at the preliminary examination, and apparently that examination was con