Hodnett v. The State

• Decision Date: 21 January 1889
• Citation: 5 So. 518,66 Miss. 26
• Court: Mississippi Supreme Court
• Parties: PETE HODNETT v. THE STATE

5 So. 518

66 Miss. 26

PETE HODNETT v. THE STATE

Supreme Court of Mississippi

January 21, 1889

October 1888

APPEAL from the circuit court of Oktibbeha county, HON. LOCK E HOUSTON, Judge. The facts are stated in the opinion.

Reversed and dismissed.

Frank A. Critz, for the appellant.

The act of March 9, 1888, in reference to carrying concealed weapons has recently been held to be ex post facto as to offenses committed prior to its passage. Lindzey v. The State, 65 Miss. 542. An indictment for carrying a pistol on January 30, 1888, is, therefore, fatally defective. If an indictment after March 9, 1888, for an offense actually committed prior to that date is void, then such an indictment which charges appellant with carrying a pistol on January 30, 1888, is void on its face.

None of the provisions of § 3013, code 1880, apply to this case. The time here is plainly fixed upon a possible day in the past, and time is of the essence of the offense so far as the case at bar is concerned. Time is immaterial so long as the indictment alleges a time which if proved will sustain a conviction, but if it fixes a time when the offense was unknown to the law it is void upon its face. The principle is clearly announced in De Marco v. The State, 59 Miss. 357. That case is the very opposite of this case. There the offense was the same under the codes of 1871 and 1880. The time is immaterial so long as the time fixed by the indictment and the time fixed by the proof are under the same or similar statutes. And that indictment, which fixed the time after the adoption of code 1880, would have been fatally bad on motion to quash or in arrest of judgment if it had charged an offense which did not exist under that code.

T. M. Miller, attorney-general, for the state.

In the absence of a bill of exceptions, it is impossible to say when the offense charged was committed, whether before or after March 9, 1888. Conceding that a party charged with carrying concealed weapons prior to the date of said act cannot now be convicted and punished, as lately held in Lindzey v. The State, it is submitted that under § 3013 the point cannot be raised by a motion to quash or by a motion in arrest.

As to the offense in question (viewing the act of 1888 as a new law), the date laid in the indictment was an impossible day just as much as if it had been a date anterior to the creation of Mississippi as a state.

I am at a loss to perceive how time can be of the essence of the offense of carrying concealed weapons. It is not material whether they are carried on a week-day, or on the Sabbath, or for any length of time, nor is the time of year material. The purpose of the statute was to prevent a failure of justice on account of errors, in alleging dates likely to be merely clerical. This purpose is plain, when it is observed that insufficiency shall not be predicated of an indictment stating an offense to have been committed on a day subsequent to the finding. Time is of "the essence of the offense" only in cases where the proof, in that regard, must be confined to the day alleged, and that is not the case here. For aught the court knows, the offense was committed, and so proved, after March 9, 1888.

OPINION

ARNOLD, C. J.

Appellant was indicted in May, 1888, for carrying a concealed weapon in January, 1888. He moved to quash the indictment, because the act with which he was charged was not an offense at the date of its alleged commission, and...