*1 Dist., 1974.] Div. Onе. Nov. 12392. First No. [Crim. PEOPLE, Plaintiff and
THE Appellant, EITZEN, Defendant Respondent. DEAN JOSEPH *3 Counsel General, Hinz, Jr.,
Evelle J. A. Assistant Younger, Edward Chief Attorney General, General, James, Timothy William E. Assistant Attorney Attorney General, Knudson, Plaintiff A. Reardon and Alvin J. Attorneys Deputy and Appellant.
Clarence B. for Defendant and Knight Respondent.
Opinion SIMS, Code, (Pen. (a)(1)) J. have subd. The People § appealed to from decision the defendant’s motion to dismiss granting pursuant Penal Code section four amended counts six-count information. It is concluded three issues raised must be resolved parties as follows: the four counts charging from prosecutor precluded theft because grand failed to hold defendant answer three of those evidence the uncontradicted charges; produced sufficient show reasonable preliminary hearing'was probable cause hold the defendant in the amended charges to answer four dismissed; and the does not as information which evidence show matter of statute law that were barred of limitations. charges *4 The dismissal of the four must be counts reversed. defendant,
At the it was examination preliminary stipulated Eitzen, was County as a sheriff in the San Mateo Joseph employed deputy 16, 1962, 23, sheriff’s office from that July 1969, until and September the from his was during first until March he period appointment 254, assigned number and thereafter until he terminated his em- badge ployment, number 9.1
The four firearms concealed prosecutor produced being capable upon the each of which marked the was with the initials “J.E.” person, and ”2 numbers “54. 4,
Exhibit a Hunter .22 caliber Hy 19019, serial number derringer, was its identified former as a owner which was taken him from weapon a by San Mateo sheriff when he County arrested on deputy was September 24, 1966, for a within discharging city the limits of Redwood weapon prosecutor gave 2239, 1The first as 2254 the respectively, numbers and but at suggestion digits of the defendant digit first were deleted because four num bers radio call numbers not was represented numbers. In court it badge superior agreed only that digits the last two badge. on the officer’s num.bers hearing 2At the the superior prosecutor request court a that filed the court judicial take notice “that the JE and on preliminary letters numbers 54 inscribed hearing, appear typical exhibits and 7 to be a evidence identification mark police indicating badge officer and his initials A that number.” declaration to effect recited, was and the offered court in its “We written decision and minute order have judicial Cooper being taken notice of the declaration of as Robert Exhibit ‘H’ defendant, desires, well as the rest of the exhibits. The produce he more evidence examining as to Exhibit ‘H’ opportunity or have the Cooper Mr. .unnecessary court.” It is propriety consider the of the consideration of the declara tion. The markings existence they is admitted and such as support inferences may be without drawn assistance from declaration. charge and a second charge held A was City. preliminary charge. he of the latter a and was convicted concealed carrying weapon, that it would he knew hearing, in court at his gun He saw it, made never what confiscated, did not care happened the gun sold or transferred his back. He never or claim to get gun request else. anyone the defendant or 5, a Iver Johnson .38 caliber revolver serial number G Exhibit a in connection was seized from identified as a vehicle was weapon madé the who an оfficer with arrest effected November 1966. with iden- indicated that receipt arrest seized revolver property testified that he He had been the weapon. numbers tifying prepared sheriff. over to the defendant as gun turned deputy Exhibit Hunter revolver, Frontier .22 number caliber serial Hy with was identified as a taken a vehicle in connection from gun made seized the testified weapon arrest The officer who August an he of the sheriff’s office in the evidence locker placed gun it saw never again. 7, Sturm, Hawk-.357
Exhibit & Black Ruger Company, Incorporated revolver, identified as a seized weapon caliber serial number *5 from the of an arrested The officer individual рerson September it his testifed was in the office by the evidence locker of sheriff’s placed the arrest. partner effecting
On October a warrant to search issued pursuant preceding an on which had day alleged affidavit disclosed that a confessed burglar defendant, that he sold made of defend- stolen to the a search was goods a set answering ant’s residence. The discovered and seized television officers that set failed forth in search warrant. The search description a to turn other items set of man’s gold forth in warrant up consisting clock, Omega yellow gold Florentine diamond an a man’s ring, antique watch, set, a a Reed and Florentine wrist Gorham silver sterling serving bucket, chain, an Barton silver ice watch and gold yellow pocket barrel, .410 caliber with double side-by-side pistol exposed antique, an In items an officer entered searching unimproved hammers. for these dresser he a cabinet or propped the basement where observed portion slab which the heater located. the wall near concrete against up items No other he observed four handguns. On drawer opening top the serial numbers the cabinet. examined them and took were found in He were discovered they which they he from the location in because thought officer that stolen The testified all four were might guns.3 guns, above, seized those described on execution of second subsequently record, search however, warrant. The which included the affidavit made indicates, warrant, second secure the search so acknowl- parties numbers of edged argument before the serial magistrate, were checked the course of first guns search and the'.357 caliber during revolver, then, exhibit was seized because information was to the relayed officer that the gun been as evidence in San Mateo logged County case, sheriff’s and because it was with the initials of the office inscribed defendant, sheriff, known been a to have former and numbers cor- deputy to his number. bаdge responding
The exhibits 5 and remaining were seized on October weapons, to a search issued and pursuant warrant executed day. The confessed testified burglar that from until February August 1972 he saw defendant and discussed him stolen frequently selling silverware, goods, such as jewelry, and fur coats. He testified he sold the warrant, defendant items mentioned in the search first and that the defendant had told him that he ran into any that were he pistols good would take them.
I examination was conducted an amended com- upon counts, which contained I, plaint offenses: re- charging following the stolen set ceiving television in violation section Penal Code; II, III, receiving stolen theft of the ring; .22 caliber derringer (exhibit 4) from the former owner in violation of subdivision of section *6 IV, Code; 496 of the Penal of the embezzlement same from the derringer owner, former and the V county; VI, and similar with charges respect the 5); .38 caliber (exhibit VIII, revolver and VII similar with charges to the .22 (exhibit X, caliber revolver respect 6); and and IX similar charges with to the .357 caliber respect revolver. Each of counts III through objected 3Defendant right officers had no to examine or seize articles which relationship bore no. to the magistrate articles described search The warrant. properly found illegal that there no picking was seizure in up weapons, plain sight search, were in make, as the result an authorized to determine their (People 374, serial (1956) numbers and caliber. v. Roberts 47 Cal.2d 380 [303 721]; People Superior and Court 2 Cal.App.3d [Aslan] 135 Cal. [82 507].) Rptr. Once it was established that weapon the one awas stolen item it was although subject (Skelton seized Superior of the first warrant. Court 485].) Cal.3d Cal.Rptr. 460 P.2d been discovered “said offense having X contained an allegation reading about October on or 1972.” overruled magistrate
After the evidence reviewed above the defendant’s is- to the of the who objections magistrate qualifications warrants, sued the search warrant and to the of the second search validity and the (see evidence on which its issuance had been fn. predicated above). On the merits he held the on the first four defendant to answer counts.
The prosecutor filed 15-count information which originally charged II), (counts defendant with I and television and the receiving ring with one count of theft from the owner and two of embezzlement counts with XIV), to each of the II and one four respect weapons (counts through XV). count of with de- (count to the conspiracy television respect limitations, fendant filed a demurrer to the information the statute of raising offense, statements of the same multiple impropriety conspiracy count. filed amended an information in which Thereuрon three counts to each of the relating were consolidated into one count of theft effect, [defendant], “That the said on and between reading or a later . [November . . did September date] wilfully, unlawfully and take feloniously of another con- property sisting a firearm, said offense [description], been discovered on having or about October 1972.” demurrer,
Defendant’s information, as to the amended applied overruled and the matter was continued for on the defendant’s argument motion to dismiss the theft and counts to the conspiracy pursuant pro- visions of section 995 of the Penal Code. The court’s decision and order reads, “We find we must with the agree defendant’s grant III, IV, motion as to Further, Counts V and VI. has not prosecution met its burden as to the statute of limitations. As conspiracy charge, technical; however, it’s highly this it stand.” stage proceedings, may Penal Code section in relevant “When de provides part, fendant has been committed, examined and as in Section provided it shall be the of the district duty attorney of in which county offense is triable to file in the court of that within superior county days *7 commitment, after the an information the defendant which against charge defendant with either offense or named offenses in order of commitment or or shown the evidence offense offenses magistratе taken added.) to have been committed. . . (Italics .” before These authorize the to any offense disclosed provisions prosecutor charge
260 the evidence at the which is examination related to the for which the defendant charge has been held to answer even though concluded magistrate or otherwise the evidence did not impliedly show cause that such (Parks offense been committed. v. probable Superior (1952) 609, Court 521]; 38 Cal.2d 613-614 People P.2d [241 v. (197 4) 1085, Zeihm 528]; 40 1089-1090 Cal.App.3d Cal.Rptr. [115 People (1974) v. Duncan 699]; 40 955 Cal.App.3d Cal.Rptr. [115 Dudley v. Superior (1974) Court 36 Cal. 983-985 Cal.App.3d [111 797]; Superior Batts v. Court Rptr. (1972) 23 440 Cal.App.3d [100 181]; People Farley (1971) v. Cal.Rptr. 19 220-222 Cal.App.3d [96 478]; People v. (1961) Horton Cal.Rptr. Cal.App.2d [13 33]; People v. Cal.Rptr. Warren 141-142 Cal.App.2d P.2d 858].) [328 v. Superior
In Jones
Court
261 II evidence or not the determine whether is, therefore, necessary
It believe cause” to furnished “sufficient introduced preliminary answer, was held to which he the offense of defendant of not guilty оnly dis and charged by prosecutor also the three counts but remaining cause’ is generally “The term ‘sufficient equivalent missed trial court. by cause,’ is, as would such a state of facts to ‘reasonable and probable and conscientiously to believe lead a man of caution or ordinary prudence As accused entertain a of the of the guilt strong suspicion [citation]. Court, 578, 582 Superior v. 3 Cal.3d Taylor we out in recently pointed , course, with the test . . ‘Of cause test is not identical . probable cer to a moral a . . . The must be convinced jury which controls jury the existence of crime charged and a reasonable doubt of tainty beyond But a mag elemеnt of that crime. in information of essential every only a must be convinced of istrate examination conducting such a state of facts as caution or ordinary would lead man of prudence believe, guilt entertain conscientiously strong suspicion words, that will accused. In other “Evidence justify [Citations.] ... An need not sufficient to a conviction. prosecution support information will not be set aside or a thereon prohibited prosecution there is some that an offense rational for ground assuming possibility ’ ” (People has been committed and the accused is of it. guilty [Citations.]” v. (1973) Uhlemann Cal.3d 511 P.2d 9 667 Cal.Rptr. [108 Court, Dudley See also Superior supra, v. 609]. 982- Cal.App.3d 983; Peoрle Riley (1963) 15-16 Cal.Rptr. Cal.App.2d [31 404].) embezzlement,
“Theft as theft by defined in section includes device, Riley, trick and (People and theft false pretenses. [Citations.]” supra, must be charges Accordingly upheld Cal.App.2d if there is sufficient evidence of cause on of the above theories. probable
The delicti of evi theft be established circumstantial corpus 408]; (See People dence. v. Ives 17 Cal.2d [110 544].) and In re Linda D. Cal.Rptr. that there magistrate no finding apparently problem cause to hold the defendant for the theft of the .22 caliber probable IV, derringer in counts III and former owner charged regarding testified. He it felt that was for the necessary apparently prove “The other In this was mistaken. ownership judge weapons.4 observed, 4The problem ownership “The purposes ... is for sections, question the theft I these county whether or not is fact an owner weapons. against against custody, Because one ownership, theft crime *9 in information that allegation ‘took the appellants personal property another’, Code, of as that term is used in section 484 of the Penal means claimant, in the bailee, of another who entitled as lien is property possession otherwise, or to retain thereof for some benefit or to possession profit others, himself to the of all rather exclusion thаn the absolute ownership, defined section Civil If the such in the right in Code. established proof case, (People instant the offense of theft was grand pleaded.” Photo See also 71]. Nelson 82.) Cal. court,
In of the defendant out that support ruling points superior is devoid of evidence of the or where- transcript ownership, possession abouts of the from until guns October of He claims that under of section 12028 of the Penal Code5 a provisions or revolver can pistol be confiscated if carried only 12025), as a concealed (see or weapon § used in the commission of a The statute also used felony. covers firearm in an to commit a and a firearm used when attempt felony, unlawfully type here, of I holding another—which is all see [i/c] is some sort of custodial of these weapons by county, only and the I evidence have in connection with actual ownership is Murphy X, from Mr. any in Counts III and IV. I don’t see for the remain- ing through Counts V ownership from the question.” 5During the period that the defendant employed as a deputy sheriff section 12028 of the Penal provided Code as follows: “(a) The unlawful carrying concealed upon person or within the vehicle of the carrier any weapons thé 653k, 12020, mentioned in Section or 12025 is a nuisance. “(b) A firearm of a nature used in the felony, commission of a attempt or an is, to commit felony, upon defendant, a conviction of the a nuisance. “(c) a felony charge Whenever is reduced charge and a convic- misdemeanor tion is upon obtained based firearm, the unlawful use of a weapon is a nuisance subject shall be provided destruction as in this section. “(d) Any weapon or, (a), described in defendant, subdivision upon conviction of any weapon (b), described in subdivision shall be surrendered to the be- fore taken, person whom the is except any city county or the weapons shall be surrendered to the head of police department. sheriff’s The officers to whom surrendered, are except upon the judge сertificate of a court of record, or of the district attorney county, preservation thereof is neces- sary or proper to the justice, ends of annually, shall days the 1st between and 10th July, year, destroy each the weapons or cause them destroyed to be to such purpose they extent that shall be wholly entirely ineffective and useless for the they for which any weapon manufactured. If has been stolen and is there- after transferee, recovered from thief or his destroyed it shall not be but shall be owner, restored to the lawful served, as soon as its use as evidence upon has been his identification of the weapon (Stats. 1963, and рroof of ownership.” ch. (Stats. § In 1970 p. 1970) § ch. effective Nov. the statute was amended provide recast disposition by offering weapons of types certain for sale in lieu of destruction. felony from a as a reduced charge convicted of misdemeanor possessor *10 event, no evidence to show (See above.) fn. there was any In charge. testified, arrested, arrestee who of the other than the any whether persons any whether seized, or a license which was ever had to the carry weapon offense, either or mis- felony of of those were ever convicted any persons was surrended weapons Nor is that of the any demeanor. there evidence any county or city the or head of the official—magistrate police particular showing was also no in the statute. There sheriff’s department—designated attorney of a record or district designated that court of any official—judge the of the De- “retention”) any ordered of (now “preservation” weapons. the show either that any fendant concludes that therefore record fails to (with of the was confiscated the of weapons possible exception properly 4), retained, or, exhibit or that if a any was or stolen preserved properly was not restored to the channels of commerce any weapon the to its by return owner under the of section rightful provisions or so restored sale under the 1970 amendment. also out that by He points the could have their back found into under way weapons private ownership the of section 12030.6 provisions
No evidence was offered show whether or not of had any weapons over, delivered been or turned under of section up, provisions or whether Bureau of Criminal and Investigation Identification ever notified been of the retention of of the Nor any any weapons. or, evidence offered to show that any had been stolen weapon weapon, so, that it had been to its returned lаwful owner. 6During period employed defendant was deputy as a sheriff section provided as having follows: custody “The any may officer of which firearms be useful Guard, to the State the Coast Auxiliary any military Guard agency or to or naval of the Federal or State m.ay upon authority legislative body Government of the of city, city and county, by or county which and employed approval he is Adjutant General of the commanding State deliver such firearms to the officer aof Guard, of the State unit the the Coast Guard Auxiliary any military agency or other of or State Federal in lieu of required by Government chapter. destruction as this delivering officer containing [¶] shall take receipt firearms them a com description plete thereof keep and the receipt shall in his office public file as a (Stats. 1953, record.” § ch. following Effective November provisions were added to the section: “Any agency law enforcement custody any any any which has parts of firearms or of subject which are required to destruction as chapter may, this in lieu firearms of destroying such weapons, any retain use may carrying of be useful them as in out agency, may the official duties of such or turn laboratory over the criminalistics of the Bureau of Criminal Investigation Identification and or the criminalistics labora- tory police deрartment, attorney’s any sheriff’s office or district office such weapons carrying as [<¡] be useful in out of respective official duties their which, agencies. Any part being firearm of destroyed. firearm than rather f,7 that a shows the evidence not only these lacunae proo Despite the defendant was which employed, agency representative official lawful himself, was in custody exhibit the defendant and in case of each and that in each of the in weapons but also that constructive possession, in defendant’s house in his was found initials, which cor his a number was inscribed with each weapon discovered number, his that all four weapons with badge resрonded concealment, to be together place place appeared secured illegally pistols. the defendant had admitted an interest acquiring *11 evidence of here not whether the circumstantial guilt is question (cf. CALJIC be rational conclusion cannot reconciled with other any lead a man of 1970) 2.01), ordinary ed. but whether it would (3d No. sus- a strong or to believe and entertain conscientiously caution prudence be is one to resolved of the accused. The former guilt question picion access to the ultimate trier of fact. The by gave employment of marking which were to be in official custody; shown weapons coin- but also a number which with not the defendant’s initials guns only came into number, the inference that he cided with his first badge permits his the sheriff’s office by possession weapons during eihployment 1, 1968, Although and before March when he was issued new number. could have returned to there have been ways many weapons trade, that did so. From of there no evidence legitimate they channels that and control evinced by all the dominion inscriptions appears his after when continued employment weapons September have had to he any right might possess weapons terminated claim by agency destroyed purposes pursuant is used for official using section shall this carrying longer by аgency such for use in weapon when is no needed out it any Any agency custody official that retains firearm its duties. law enforcement [¶] pursuant destroys pursuant to this section or that a firearm to Section shall Investigation notify of such retention or the Bureau of Identification and Criminal firearm, of each complete description destruction. This shall notification consist name, model, caliber, including and serial the name of the or brand manufacturer (Stats. § number.” ch. guns commented, goes years. The . . back seven 7The had “That . know, then, got they by all I before might gone through different for have ten hands long There are a lot dealing period of time. Eitzen. We’re herе with to Mr. far unexplained gaps as as— closed, whether closed or not either “We don’t have indication cases were that— to have them. And permission have permission to have them or not he good my opinion. I don’t know.” pretty loose end in that’s exhibit referred to III and IV which the defendant on counts Nevertheless he held 24, 1966. gun September was arrested Murphy witness when he taken from one, virtue of that fact that not also ceased to exist. The employment but four found in were found and that weapons, together they concealment, logical the inference that place supports possession unlawful, each in 1972 and must be surmise weighed against of the four individually found its into and was guns way private ownership so, did collectively the defendant. If he acquired by merely acquire sentimental sake did he sub- which had been inscribed “54” or so inscribe them for the same motive? sequently
The trial court erred in of reasonable overruling magistrate’s finding cause with to the probable on exhibit charge predicated respect there was finding no reasonable or cause for the probable charges based on exhibits 6 and which were filed the district under the attorney of section provisions
II The defendant has raised the defense of the persistently statute *12 of limitations. The prosecution has relied an throughout allegation upon “. . . said reading offense been discovered or having on about October 7, 1972.” The defense was overruled one by magistrate following legal argument, demurrer, apparently when it that the statute had appeared been amended to run from a ain theft case. It was renewed before discovery examination, hearing but over preliminary apparently him, ruled by since he held the defendant to answer for theft of exhibit 4. When this defense was renewed in connection with the motion under Code, section 995 the Penal recited, the trial sustained it. His order judge “Further, has met prosecution not its burden as to the statute of limitations.”
The burden on the has been set prosecution forth as follows: “An accusatory must facts pleading allege showing is not prosecution barred by statute [citations], of limitations . . . the bar of [¶] [A]s the statute is a jurisdictional defect rather than affirmative simply an defense which must be raised (such by as double special plea the burden jeopardy), is on the People that the offense establishing was committed within the applicable period of limitations. Failure to sustain that burden [Citations.] will result in vacation or reversal of the judgment of conviction. [Cita It follows that if the tions.] evidence which the indictment is based upon is to ‘warrant a conviction a trial (Pen. Code, 939.8), jury’ it must § include at least some evidence that the barred not prosecution statute of (People limitations.” v. Crosby 713, (1962) 58 Cal.2d 724 and 847, 725 Cal.Rptr. [25 375 P.2d People (1934) See also v. McGee 839]. 266 (1972) 611, 378]; Superior v. Court 613-614 P.2d Sobiek
1 Cal.2d [36 (1967) 846, 516]; People v. Doctor 849 Cal.App.3d Cal.Rptr. [106 608]; Cunningham 105, People 110-111 257 Cal.App.2d Cal.Rptr. [64 296, 283]; (1943) People James P.2d Cal.App.2d [221 121, 30]; v. McGill P.2d Cal.App.2d [138 155, 433].) 159-160 At all times the defendant’s section 800 during employment felonies Penal Code indictment for other felony “An provided: [specific filed, case found, must be information pertinent here] [sz'c“an”] court, its commission. certified to the within three after years superior 1113, 1, (Stats. 1941, 2816.) . . .” ch. p. § the termination of about weeks after On November seven defendant’s were made to section 800 amendments employment, a final and added theft” to the excluded rephrased “grand provisions, found, sentence which shall be an read “An indictment for theft grand filed, information within three years or case certified to the court superior 1969, 1, (Stats. 1171, 2266.) after its ch. discovery.” p. Subsequent § amendments have added and to the last other felonies to the exclusion 1333; (See sentence. Stats. ch. Stats. ch. p. § ' 1, 1860; Stats. ch. p. § § Before of the amended information and reviewing allegations evidence at the determine whether the produced issue, has met its burden on this it is prosecution necessary pretrial *13 consider two contentions raised the to the statute. The by amendment first is whether the stаtute can extend the of limitations. period If for of the thefts was at the time grand barred prosecution alleged amended, the statute was it cannot be revived the amendment. In by Court, Superior Sobiek v. supra, the court was concerned with the 1970 amendment to the statute which included from “within three forgery years after its commission” it in the “within three provision years placed after its concluded, limi- discovery The court “The statute of provision.” tations it, run to the having amendment of the prior extending application amendment to situation would constitute of ex petitioner’s application (28 851.) facto at post legislation.” Cal.App.3d p. this
In case it is that each theft alleged was committed the during period 11, 1966, no beginning earlier than November extending September 23, 1969, when the defendant’s as a sheriff terminated. employment deputy Under the those offense could still be allegations on November prosecuted 1969, 10, when the statute was amended. The matter is the governed by
267 (2d v. United. States Learned Hand in Falter by rule enunciated Judge 1003, (1928) (72 Cir. 23 F.2d den. 277 590 L.Ed. 1928) 420 U.S. [cert. ex- 528)] 48 S.Ct. within a period right prosecute upheld an statute if the amendment by existing tended an amendment to He to the of of limitations. original period adopted prior expiration stated, “But, it extended on, us to while chase is it does not shock have set, or, does, (23 first if it it.” F.2d at beyond time stake forgives 426, 702, People (1958) See Cal.2d Ward 50 709 p. [328 777] 631, People on other v. Morse Cal.2d grounds 60 [overruled 201, 33, 810)]; (36 Superior 649 12 A.L.R.3d Sobiek v. 388 P.2d Cal.Rptr. Court, 850; supra, at Snipe (1972) 28 Cal.App.3d p. 742, 6].) Cal.Rptr. however, shows, that three proof of came into of law weapons enforcement officials prior possession November If the showed an the de- proof appropriation fendant before November would be barred. prosecution The evidence at the preliminary hearing inference that permits taken as late as so it cannot said September as a matter of law that the amended statute does not apply.
The second is raised whether the questiоn discovery intended is the discovery loss or the of crime. In other words if the discovery thefts were discovered on or before of theft April charges in the information filed would be barred the statute of April limitations. Section extends the time embez- prosecution public zlement and two other offenses to time after “any discovery “crime,” crime.” There is no mention in the amendment to section and it is suggested discovery loss should property set the statute in (Cf. motion. Review of Selected 1969 Code Legislation (Cont.Ed.Bar) 165; and Review Legislation Selected Pacific L.J.
It nor does the alleged, at the proof preliminary hearing require *14 a finding loss was discovered before October when the were found in the defendant’s constructive Neverthe- possession. less, it may argued that under the circumstances of this case there should have been some diligence that an discovery offense been Doctor, People committed. (See 111-113; supra, 257 at pp. and Review of Selected (Cont.Ed.Bar) Code Legislation supra, The fact that the evidence to embezzlement points property have been entrusted the defendant is a factor to be considered. event, examination at the neither nor
In pleading proof of limita- the issue the statute sustains the against finding The resolution charges. so as to warrant dismissal of thе tions issue must the trial. await III, IV, information of counts V and VI amended dismissal reversed.
Molinari, J., J., concurred. Elkington, P. A December for a was denied petition rehearing was then rendered: following opinion for defendant confusion as THE asserts By petition rehearing COURT. discovered, must
to whether the when crime was prosecution prové and, so, at the whether such must be made preliminary hearing. proof His confusion is failure to the issue engendered appreciate posed this As out in the the answer stage proceedings. pointed opinion, however, as it to both is in the affirmative. The insofar questions proof, indicates status as an sustains embezzling employee ..defendant’s the crime was until not discovered implied finding after in October April denied Court was Supreme
Respondent’s petition 16, 1975. January