People v. Montejo

Field, C. J. and Cope, J. concurring.

We think that the judgment in this case should be affirmed.

The first assignment is not well made. The indictment does not charge two offenses, but only one—the addition of the word received to the word buy, applied to the same subject and act, though not absolutely necessary, does not make the offense less or different than the buying of the article stolen.

*40The indictment, which was for receiving stolen goods, avers that the defendant, “ after the said twenty-second October, 1856, and after he had feloniously and willfully bought and received the said mule, and before the finding of this indictment, did absent himself from the State of California aforesaid ; and, for the space of time of two years and four months after the said twenty-second October, 1856, and after he had feloniously and willfully bought and received the said mule, and before the finding of this indictment, he, the said Montejo, was not an inhabitant of or a resident within the said State of California.” Art. 1443 of the Criminal Practice Act, (Wood’s Dig.'278) provides, that “ if, when the offense is committed, the defendant be out of the State, the indictment may be found within the term limited after his coming within the State, and no time during which the defendant is not an inhabitant of or usually resident within the State, shall be a part of the limitation.” We think it clear that this provision as well includes the case of the defendant leaving the State after the commission of the crime as the case of his absence at the time of its perpetration, and that it applies to all offenses. We think the indictment in the clause quoted sufficiently avers the matter of exception to the operation of the Statute of Limitations.

Judgment affirmed.