Dacy v. State , 17 Ga. 439 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The Court was right in refusing to continue the case. The defendant proposed to prove an alibi by the witnesses who were absent; that is, that on the 1st day of May, 1852, the time stated in the presentment, when the offence was committed, he was absent from home during the whole day. To this, the Solicitor General replied, that he did not expect to show that the misdemeanor was committed on the 1st, but on a subsequent day in May.

[2.] This he was entitled to do, as the time need not be proved as laid, unless where it is of the essence of the offence. And the facts may be proved to have occurred on any other day previous to the preferring of the indictment. The authorities are not only uniform in support of this doctrine, but it has been the constant course of proceeding in criminal prosecutions, from the highest offence to the lowest. All objections to this practice on behalf of prisoners have been repeatedly and uniformly over-ruled. (2 Hawks P. C. b. 2 ch. 46; 2 Just. 218; 3 Ib. 230; 1 Hale’s P. C. 361; 2 Ib. 179; Fost. 7, 8; 1 Chitty’s Crim. Law, 223; McNally’s Ev. 496-7, et seq.; 4 Starkie’s Ev. 1568; Starkie’s Crim. Pl. 58; 2 Stark. Nisi P. 458; 1 Phil. Ev. 203, 514; St. Trials, 587, 605, 542, 552; Rex. vs. Channock, Holt, 301; 1 Salk. 288; The State vs. Hanney, 1 Hawks. R. 460; Com. vs. Hoorington, 3 Pick. 26; 9 Cowen 655; 2 Mason, 49.)

But where’ the date of a particular fact is necessary to ascertain, with precision, the offence charged, it must be proved as alleged. Consequently, several exceptions have been made to-the foregoing rule, namely: that it will not be necessary to prove precisely the time as laid. 1st. In all cases where written instruments are pleaded, the date, if stated, must correspond with the date of the instrument when produced in evidence on the trial. (Com. vs. Lyon, 2 Camp. 307, n. Freeman vs. Jacob, 4 Campb. 249.) 2d. As deeds may be pleaded, either according to the date which they bear, or to the day on which they are delivered — if a deed produced in evidence bear date on a different day from that stated in the pleading, the party producing it must prove that it' was, in fact, delivered on the day alleged in the pleading. 3dly. If any time- ' stated in the pleading is to be proved by matter of record, it must be correctly stated. . (1 T. R. 656. 4 Id. 590. 11 East. 508. 1 H. B. L. 49. 2 Saund. 291, b.) The slightest variance in any of these respects, will be fatal in felonies.. In misdemeanors, in some cases, they are amendable at the trial. 4thly. When the precise date of any fact is . necessary to ascertain and determine, with precision, the offence charged or the matter alleged, in excuse or justification, any variance-between the pleading and evidence will be fatal. And lastly. Where time is of the essence of the offence, as in burglary and the like, the offence must be proved to have been committed in the night-time, although the day on which the offence is charged to have been committed is immaterial. In murder, also, the death must be proved to have taken place within a year and a day from the time the stroke was given. (2 Hawkin’s Ch. 23, §90.)

Of course, then, this waiver on the part of .the State, destroyed the materiality of the testimony. Indeed, it rendered it wholly inapplicable to the case. Nor was it forcing a trial, by making admissions which cannot be done in civil suits. But it is like striking out'a count in a writ or an indictment, to which, alone, the absent proof referred.

[3.] We are unanimous, however, that a new trial should have been granted, after the indictment in the former case was found in the possession of the Solicitor General, and the order of discharge and acquittal upon the minutes of the Court.

In view of the incalculable importance of time to the Courts, and the unparalleled exigencies of this busy-worldng age, when the habit of wine-bibbing even is discontinued, not so much from any moral conviction as to its danger or inutility, as from the simple fact, that men cannot afford, as formerly, “ to tarry long at the table !” I repeat, that in view of all this, we may concede, perhaps, that some degree of laches was imputable to the party. We are called _.upon by Counsel to rebuke, indignantly, the idea, that the profession are to become absolute drudges in hunting up papers belonging to the offices, &c. Let such appeals be addressed to those who lounge in castles of indolence. We confess ourselves incapable of appreciating them. Every body must learn to labor. This is the fundamental law of the universe.

-“Nought is sleeping,

From the worm of painful creeping

To the cherub on the throne.”

It is true, that our sturdy ancestors held it beneath the condition of a freeman to appear at the return day of the writ, or to do any other act at the precise time appointed. (3 Black. Com. 278.) But those good old days of ease and indulgence are gone forever. And it is a vain struggle to attempt to retain or revive them. *

[4.] Conceding, as we do then, that Courts are and should be disinclined to relieve against verdicts occasioned by the negligence of parties ; still, where justice imperatively demands it, it will be done. No earthly doubt exists but that the defendant has been convicted and sentenced to a month’s imprisonment in the common jail of the county, for an offence, from which he had been fully acquitted and discharged. Negligence or no negligence, can justice demand such, the sacrifice of the liberty of a citizen, in order to preserve a rule ? We cannot sanction such a doctrine, especially as the State was not without fault in this matter. Had the books of the Clerk been paged and indexed as they should have been, the order on the minutes could have been referred to instantly. And then again, the indictment in the former case, was found in the possession of the Solicitor General, who, when applied to, as the record states, before the trial, denied having it, having overlooked it in the hurried examination of his papers.

Under all 'the circumstances, odious as the crime may be for which Daey has been convicted, and notwithstanding he escaped through a loop in the Statute, without having been tried upon the merits; still, shielded as he is under the immunity of the laws of the land, the judgment against him must be reversed and a new trial awarded.