| Cal. | Jan 15, 1859
delivered the opinion of the Court—Terry, C. J., concurring.
This was an indictment for murder, under which the defendant was convicted of manslaughter. The act is charged to have been committed more than three years before the finding of the bill; and three years is the period of limitation to the prosecution of the offense of manslaughter. It is true, that a party may be convicted of manslaughter under a general indictment for murder; the indictment for murder answering as a good indictment for manslaughter. But when the indictment for murder is used as a substitute for, and in place of, an indictment for manslaughter, it must, if time be material, contain the averment as to time, which would be essential in an indictment for manslaughter. The object of pleading is to apprise a party of the precise charge made against him, and to enable him to defend himself and to avail himself of all his legal rights and privileges. It is generally true that every essential fact must be stated in the indictment ; and this means every fact material to the offense of which the party may be convicted ; and the allegation of a day within the period of limitation is material, whenever the offense is subject to limitation. (Wharton Cr. L., pp. 111 and 114.) If, for example, robbery was an offense not barred by lapse of time, but larceny was barred within a year, though the rule is that every robbery includes a larceny, we apprehend a conviction for larceny could not be had under this indict
It is true that the Statute of Limitations excludes from computations the time the defendant may be out of the State, but the rule is, that this exception must be stated in the pleading. Prima facie, the lapse of time is a good defense, and if the statutory exception is relied on, the State should set it up. This is the rule in civil pleadings under our system, and it is not less strict in criminal cases.
The case in 9 Cowen, cited by the Attorney General, seems to be against this view, but that case stands opposed to well settled precedents in the English and American Courts. The contrary doctrine seems to be held in State v. Bockwith, 1 Stew., 318" court="Ala." date_filed="1828-01-15" href="https://app.midpage.ai/document/state-v-beckwith-6531349?utm_source=webapp" opinion_id="6531349">1 Stewart, 318; Shelton v. State, 1 Stewart & Por. 208 ; and State v. Roach, 2 Haywood, 552 ; see also 1 How. Miss. 260; Wharton Cr. L. supra, 1 Chitty Cr. L. 253.
Upon principle, we can see no distinction between an indictment for murder, which, if good for manslaughter, shows on its face that the crime for manslaughter is barred, and an indictment for the special offense of manslaughter with the same statement as to time.
We cannot hold that the condition of the defendant under the more general indictment is any worse than if the indictment were for the precise and specific offense.
Judgment reversed.