State v. Small , 80 Me. 452 ( 1888 )

Virgin, J.

In setting out, in an indictment, an offence whicq consists of a single act, though an allegation of the time of its commission is necessary, still the evidence of such act is not confined to the time alleged, but may be of acts which took place at any time before the finding of the indictment and within the period allowed by the statute of limitations. Bac. Ab. Indict. G. 4; Com. v. Traverse, 11 Allen, 260.

When the offeuce consists of a series of acts, a day certain must be alleged, and the time is material, and no evidence of the commission of the acts on any other day is admissible. Com. v. Elwell, 1 Gray, 462 ; Com. v. Gardner, 7 Gray, 494 ; Com. v. Sullivan, 5 Allen, 513. Such offences are frequently and properly set out with a continuando ; and when so set out, time is material, and evidence is confined to acts which happened within the days alleged. State v. Cofren, 48 Maine, 364-366 ; Com. v. Briggs, 11 Met. 573 ; Com. v. Chisholm, 103 Mass. 213; Com. v. Dunster, 145 Mass. 101; Com. v. Purdy, 5 N. E. Rep. 710. And an indictment containing such allegations may be supported by proof of the commission of the offence during any part of the period named. Com. v. Wood, 4 Gray, 11; Com. v. Connors, 116 Mass. 35.

Exceptions sustained.

Peters, C. J., Walton, Danforth, Libbey and Foster, JJ., concurred.