JUDGES: Garoutte, J. Harrison, J., and Van Dyke, J., concurred.
OPINION
GAROUTTE, Judge
The defendant was informed against on the twelfth day of September, 1898, by the district attorney of the city and county of San Francisco, for the crime of grand larceny, alleged to have been committed on the fifteenth day of March, 1897. He was tried and convicted of petit larceny. This appeal is taken from the judgment and order denying his motion for a new trial.
As the sole ground for the appeal, it is claimed that the defendant having been convicted of petit larceny, the judgment is void, inasmuch as the statute of limitations bars the prosecution of the defendant, under such circumstances. This contention is based upon section 801 of the Penal Code, which provides: "An indictment for any misdemeanor must be found, or an information filed, within one year after its commission." Giving a liberal construction to this provision of the code, we have arrived at the conclusion that the defendant should not have been convicted of the crime of petit larceny. To our surprise, we have been unable to find any provision of the law prescribing a limitation for the prosecution of ordinary or simple misdemeanors. But the provision quoted above does declare in effect that all misdemeanors prosecuted by indictment or information are barred by the statute of limitations in one year. This defendant has been prosecuted by information and has been convicted of a misdemeanor. He has, therefore, been prosecuted for a misdemeanor, by information, and the one-year statute would seem to apply. By a strict construction of this provision of the code it might be held that it was only applied to those specific cases where the information or indictment upon its face charged a misdemeanor. But a more liberal construction would make the statute apply to all those cases where, under the indictment or information, the defendant may be, and is, convicted of a misdemeanor. Such construction should maintain, especially in view of the fact that otherwise, in every case where a defendant is prosecuted for felony and convicted of misdemeanor, there would be no statute of limitations which could be invoked. These conditions as to such convictions arise every day, and we conclude that the one-year statute of limitations should be held to apply to those cases.
For the foregoing reasons the judgment and order are reversed and the cause remanded.