People v. Rose

Opinion

KAUS, P. J.

In December 1969 the Santa Barbara County Grand Jury indicted defendant for a murder which, according to the indictment was committed “between November 6, 1966, and November 24, 1966.”

1

The indictment contains no allegations which, if true, would permit the tolling of any applicable statute of limitations. After evidence was presented to a jury the court instructed on murder and voluntary manslaughter. Defend

[417]

ant was found guilty of manslaughter and sentenced to state prison, the sentence to run concurrently with that imposed in another case.

Neither in the court below nor in the briefs initially filed with us is there a hint that anyone appreciated the manifest problem of a manslaughter conviction upon an indictment presented more than three years after the homicide. (Pen. Code, § 800.)

2

As will be noted this may not be due to oversight. After reviewing the record filed with us we requested counsel to inspect the superior court record and invited a motion to augment in case it contains something with reference to the statute of limitations. We are advised by the People that they can find nothing except an indication that defendant was arrested in New York, but no hint how long he had been there.

It has been the law of this state ever since

People

v.

Miller,

12 Cal. 291, that on an indictment for murder—which crime is, of course, not governed by any statutory period—filed more than three years after the homicide, there can be no conviction for the lesser included offense of manslaughter unless the accusatory pleading shows some bar to the application of the statute of limitations. None having been alleged here, the conviction is jurisdictionally defective and must be reversed.

(People