State v. Beckwith , 1 Stew. 318 ( 1828 )

JUDGE SAFFOLD

delivered the opinion of the Court.

The omission to state with certainty the time of the commission of the offence, is one of the causes assigned for error.

In the language of a man confessedly great, “ it is laid down as an undoubted principle in all the books that treat of this matter, that no indictment whatever can be good, without precisely shewing a certain year and day of the material facts alleged in it.” ^b It is also held by most or all the ancient crown lawyers, that the time of the commission of offences is, in the-general, necessary to be stated in the indictment, and especially where the time for the prosecution is limited by statute. This is required, in order that it may appear from the indictment, that the offence is within the limits. This reason would apply with full force to the present case. A late statute provides, that for assaults and battery, the indictment shall be preferred, or at least the party recognized, within six months of the time committed, else the prosecution shall be barred. If the first count in the indictment would not be affected by this statute, the second certainly would, and the limitation for the first, by a former statute, can not exceed one year. And without here deciding whether a legal bar to one count in an indictment, would equally affect the whole, the consideration alone that it does not appear from ihe record, but that the one count may have been barred, is sufficient to establish the materiality of the time. The indictment was found in October, 1826; it charged the offence within the same year ; it may have been exceeding six months anterior to the commencement of the prosecution, and yet within the year. One entire year could not have elapsed, but the doctrine is, that whenever the time is in any way material, it must be averred. The indictment will be vitiated by a repug-nancy as to time, as where more than one date is necessary in the description of an offence; and they are stated with such inconsistency, that they cannot be recon-cilecl; the same where an impossible ¿ate is laid, as tbe 30th of February or the 31st of April, though the intention appear manifest. Though an averment of time is requited, it is not necessary that the proof should correspond strictly with it. The offence may be proven lo have been committed at any time anterior to the day laid within the limitation of the prosecution. Whether between the time as averred and the finding the indictment, is not now a question. ^a :

With respect to the second assignment, which is “ that the indictment does not charge the assault to have been committed with intent to murder,” little is necessary to be said, as the former is decisive of the case. It is not perceived however, that this indictment varies materially from correct precedents. Let the judgement below be reversed.

b 3 Bac. Ab« S6V

a 1 Chit. Ci*. 18-1-5. L. :