## Facts

- An information charged John McGee with rape allegedly committed “on or about” March 30, 1926, and also alleged a prior conviction for second-degree burglary.
- The information was filed on November 3, 1930, more than three years after the alleged rape date.
- The charging document did not allege facts supporting tolling of the limitations period (e.g., absence from the state).
- McGee appeared without counsel, pleaded guilty, and was sentenced to state prison.
- After judgment, McGee moved to set aside the judgment, arguing the prosecution was time-barred on the face of the information and the “prior conviction” allegation was improper because the burglary conviction occurred after the rape date.
- The trial court denied the motion; McGee appealed from that denial.

## Issues

1. Whether a criminal prosecution that is time-barred on the face of the information, with no pleaded exception, fails to state a public offense and deprives the trial court of jurisdiction, permitting the defect to be raised after a guilty plea and judgment.
2. Whether a conviction occurring after the charged offense may be alleged as a “prior conviction” for enhancement purposes under Penal Code § 969.

## Decision

- The court reversed the order denying the motion to set aside the judgment.
- The court held the information facially showed the prosecution was filed outside the applicable three-year limitations period for the charged felony and pleaded no tolling facts.
- The court held the limitations defect was jurisdictional, so it was not waived by a guilty plea and could be raised after judgment.
- The court held the burglary conviction was improperly pleaded as a “prior” because it occurred after the commission of the charged rape.
- The judgment based on the defective information was required to be set aside.

## Legal Principles

- When an information shows on its face that the criminal statute of limitations has run and alleges no exception, the pleading fails to state a public offense and does not confer jurisdiction to convict.
- The criminal statute of limitations, in this posture, is not a waivable defense; it may be raised at any time, including after a guilty plea and judgment.
- A guilty plea cannot supply jurisdiction where the charging instrument is jurisdictionally defective.
- For purposes of pleading enhancement under Penal Code § 969, a qualifying “prior conviction” must precede the commission of the charged offense; a later conviction cannot be pleaded as a prior for an earlier crime.

## Conclusion

The court set aside the post-judgment denial and required the conviction to be vacated because the information was facially time-barred without pleaded tolling and because the alleged “prior conviction” was not a legally valid prior under Penal Code § 969.


People v. McGee, 36 P.2d 378 (Cal. 1934)