People v. McGee

LANGDON, J.

On November 3, 1930, an information was filed charging defendant with the crime of rape, and alleging the commission of the offense on or about March 30, 1926. A prior conviction of second degree burglary was also charged. Defendant appeared without counsel, pleaded guilty and was Sentenced to imprisonment in the state prison. On March 18, 1933, defendant filed a motion to set aside the judgment, which was denied. This appeal is from the order denying the motion.

Section 800 of the Penal Code provides: “An indictment for any other felony than murder, the embezzlement of public money, or the falsification of public records, must be found, or an information filed, within three years after its commission.” Section 802 of the same code provides: “If, when the offense is committed, the defendant is out of the state, indictment may be found or an information filed within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within this state, is part of the limitation.” On the face of the information herein it clearly appears that it was not filed within the period of the statute of limitations, and no allegations setting forth an exception to the running of the statute are made. If

[613]

defendant had set up the bar of limitation, he would, so far as the record shows, have been entitled to a dismissal. But he failed to do so and raises the defense now for the first time after conviction and sentence. His contention is that the court lacked jurisdiction after the expiration of the three-year period, and that the judgment was therefore void.

Whether the statute of limitations in criminal cases is jurisdictional, or a matter of defense to be affirmatively pleaded by the defendant, is a question upon which there exists some diversity of opinion. In California the law is in a most confused state. This court, in

Ex parte

Blake, 155 Cal. 586 [102 Pac. 269, 18 Ann. Cas. 815], declared that the statute was a mere matter of defense, and not ground for discharge on

habeas corpus.

The District Court of Appeal, in