People v. Lavin

Dykman, J.

The defendant was indicted for one offense and convicted of another and different one.

He was indicted for selling spirituous liquors on Sunday, May 18, 1884, and convicted of selling on Sunday, April • 20, 1884.

Time was an important and material ingredient m the offense and therefore the variance between the indictment and the ■"■proof was very material. The defendant could not. prepare to defend himself against a charge of selling spirituous liquors on Sunday, April 20, because that was not the crime intended to be charged.

There are other questions involved in the case which render the conviction very doubtful, but as it must be reversed, we do ■’ • not decide them.

■ The conviction should be reversed.

Pratt, J., concurs; Barnard, J., dissents.