Morgan v. State

• Decision Date: 13 March 1906
• Citation: 51 Fla. 76,40 So. 828
• Court: Florida Supreme Court
• Parties: MORGAN v. STATE.

40 So. 828

51 Fla. 76

MORGAN v. STATE.

Florida Supreme Court, Division B.

March 13, 1906

Error to Circuit Court, Hamilton County; Bascom B. Palmer, Judge.

Jim Morgan, alias Stephney Porter, was convicted of crime, and brings error. Reversed and remanded.

Shackleford C.J., and Cockrell, J., dissent.

Syllabus by the Court

SYLLABUS

A date upon which the alleged crime was committed must be alleged in the indictment with definiteness and certainty whether such specific date be proved at the trial or not.

Charging that the offense was committed 'on or about' a certain day is indefinite and uncertain, and is fatal upon motion in arrest of judgment.

COUNSEL

Roberson & Small, for plaintiff in error.

OPINION

PARKHILL, J.

The plaintiff in error, who will be called the defendant elsewhre in this opinion, was indicted by the grand jury of Hamilton county on the 19th day of July, 1905, for the crime of assault with intent to rape. The defendant entered a plea of not guilty, was tried and convicted, and then made a motion in arrest of judgment because:

'(1) The indictment in said cause does not allege the offense named therein to have been committed on any particular date.

'(2) There is no date in the indictment on which defendant is charged to have committed the offense named therein.'

The offense was laid to have been committed 'on or about the 27th day of June, A. D. 1905.'

The assignment of error is that the court erred in overruling defendant's motion in arrest of judgment, and it is contended here by the plaintiff in error that the indictment should charge the offense to have been committed on some day certain; and that the indictment fails to so charge when it is alleged therein that the crime was committed 'on or about the 27th day of June, A. D. 1905.'

At common law, an indictment must state the day, month, and year in which the offense is supposed to have been committed. Clark's Crim. Proc. 237; 1 Bishop's New Crim. Proc. § 587.

The indictment must aver the date positively; it cannot be determined by inference, and it must set forth some particular day within the statute of limitations. Hughes Crim. Law & Proc. § 2730.

An allegation that the offense was committed 'on or about' a day named is, by the common law, insufficient. Bishop's New Cr. Proc. § 390; Hughes Crim. Law & Proc. § 2725; United States v. Winslow, 3 Sawy. 337, Fed. Cas. No. 16,742; United States v Crittenden, Hempst. 61, Fed. Cas. No. 14,890a. And an indictment which avers that the offense was committed 'on or about' a day named is bad on motion in arrest of judgment. State v. O'Keefe, 41 Vt. 691; Territory v. Armijo, 7 N. M. 571, 37 P. 1117; Mau-zau-mau-ne-kah v. United States, 1 Pin. (Wis.) 124, 39 Am. Dec. 279.

In some states, says Bishop, statutes justify the allegation that the offense was committed 'on or about' a day named, and without statutory aid in Connecticut this form is accepted by the courts. Bishop's New Crim. Proc. § 390. There are statutes which provide that the precise time at which an offense was committed need not be stated in the indictment. In states where these statutes have been enacted, the courts have recognized the rule of the common law to be as stated by Bishop, and have distinctly said that their statutes changed or modified the common law. For declarations of this kind, see United States v. Conrad (C. C.) 59 F. 458, text 461; State v. Williams, 13 Wash. 335, text 338, 43 P. 15; People v. Littlefield, 5 Cal. 355; State v. McDonald, 16 S.D. 78, 91 N.W. 447; State v. Woosley, 19 Utah, 486, text 492, 57 P. 426.

By statutory enactment the common law is in force in this state. Section 2369, Revised Statutes of 1892, is as follows: 'The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in the state where there is no existing provision by statute on the subject.'

We have no statute changing the rule of the common law requiring that the indictment must set forth some particular day on which the offense is supposed to have been committed, and this court cannot legislate upon this subject. It is our duty not to make the law, but to declare and administer it as we find it.

Some courts have held that the allegation 'on or about' is a sufficient statement of the time of the commission of an offense, because the averment of time in an indictment is a matter of form, not generally material. In the case of Dickson v. State, 20 Fla. 800, we held that 'the allegation of the time or date of the commission of the offense is one of substance, and not of form. A mistake in such allegations is not susceptible of amendment.' In the case of Drummond v. State, 4 Tex. App. 150, the court, overruling the case of State v. Elliot, 34 Tex. 148, held that 'the allegation of the time or date of the commission of the offense is an allegation of a substantive, and not one of a formal nature, whereupon, a mistake in that allegation, though obviously clerical, is not susceptible of amendment.' We have held that the indictment must state the day on which the offense was committed. Chandler v. State, 25 Fla. 728, 6 So. 768. In Whatley v. State (Fla.) 35 So. 80, this court quoted approvingly from Commonwealth v. Maloney, 112 Mass. 283, as follows: 'It is true that generally in criminal prosecutions it is not necessary that the precise time alleged should be proved. But every indictment or complaint must allege a precise day, and the time alleged must be such that the record will show that an offense has been committed.'

In Alexander v. State, 40 Fla. 213, 23 So. 536, we said: 'The authorities all agree, however, that while some date or time must generally be stated in the indictment upon which the offense was committed, yet such time need not be stated accurately, except in those cases where the allegation of the precise time is material; and the time alleged must be prior to the finding of the indictment and within the period when the offense would be barred by limitation; and a different time may be shown at the trial, and it will be sufficient to sustain a conviction if such proof shows the offense to have been committed at any time prior to the indictment, and within the bar of the statute, except in cases where the exact time enters into the nature of the offense.' What was there meant by saying that 'such time need not be stated accurately' was that the true time need not be stated, that some day must be stated but the day stated may not in fact be the day of the...