I. The indictment does not charge two offenses. ( People v. Beatty , 14 Cal. 560.)
II. The indictment brings the case within the exceptions contained in section ninety-nine of the Act of Limitations. (Wood's Dig. 278; People v. Miller , 12 Cal. 291.)
Even if the indictment does not in language follow strictly the provisions of the act referred to, still the defendant cannot be benefited by it, for the reason that insteadof being against him, the language of the indictment is more favorable to him than that of the law. The statute exemption is, " not an inhabitant of, or usually resident within the State," etc., while that of the indictment is, " was not an inhabitant of, or a resident within the said State," etc., leaving the word usually out. Under the law, he might have been occasionally within the State, and still subject to the effects of the exemption, while the indictment placed the prosecution in the position (if followed strictly) of being compelled to show that he was not at any time during the period mentioned, within the State.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
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 The indictment, which was for receiving stolen goods, avers that the defendant, " after the said twenty-second October, 1856, and after he had feloniously and wilfully 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 wilfully 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." Section 99 of the Criminal Practice Act, 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