State v. Brown

• Decision Date: 22 February 1886
• Citation: 24 S.C. 224
• Parties: STATE v. BROWN.
• Court: South Carolina Supreme Court

24 S.C. 224

STATE v. BROWN.

Supreme Court of South Carolina.

February 22, 1886

An indictment that fails to state any specific day on which the alleged offence was committed is fatally defective.

Before PRESSLEY, J., Charleston, June, 1885.

The opinion sufficiently states the case.

Messrs. Lee & Bowen , for appellant.

Mr. Solicitor Jervey , contra.

OPINION

MR JUSTICE MCIVER.

The only question raised by this appeal is as to the sufficiency of the indictment under which the defendant was convicted. The indictment was for burglary, and charged, " That Andrew Brown, on the day of March, in the year of our Lord one thousand eight hundred and eighty-five, at the hour of in the night of the same day, with force and arms," & c.; and the precise question is whether the omission to state any specific day on which the offence was alleged to have been committed is fatal.

In Archbold's Criminal Pleadings , page 11 of the 1st edition, it is said: " Time and place must be added to every material fact in an indictment; that is, every material fact stated in an indictment must be alleged to have been done on a particular day, and at a particular place." And again, at page 12, this writer says: " The time laid should be the day of the month and year upon which the act is supposed to have been committed. A day certain must be stated; and this at present is always the day of the month, although naming it as a feast day, or ‘ the octave of the Holy Trinity,’ or the like, seems to be sufficient." So in 1 Chitty, Criminal Law at page 217, it is said: " It is, in general, requisite to state that the defendant committed the offence for which he was indicted on a specific year and day." And in 1 Bishop, Criminal Procedure , section 239 of 1st edition, it is said: " Every indictment must allege a day and year on which the offence was committed."

In view of the doctrine thus explicitly laid down by these standard authorities on criminal pleading, we do not see how we can avoid the conclusion that the indictment under consideration is fatally defective in failing to state any specific day on which the offence charged was alleged to have been committed; especially when we find that this doctrine has been so recently recognized in this State in the case of State v. Coleman (8 S.C. at page 243), where it is said: " Time and place must accompany every material allegation in the indictment, though it is not necessary in all cases to prove the offence on the day laid if it is before bill found." In that case the indictment charged that the prisoner, on the 13th day of April, in the year of our Lord one thousand eigh hundred and seventy-three, inflicted the wounds, & c., and then proceeded to allege that the said deceased, " from the said 13th day of April, in the year of our Lord 1873, until the 14th day of the same month of April in the year of our Lord last aforesaid, did languish," & c.; and the court said these latter words just quoted made manifest and put beyond doubt the day when it was alleged that the mortal blow was inflicted. But the court said: " Admitting that the letters eigh make no word significant of time, if there was nothing else in the indictment by which a time was found to be specified by proper expression, the exception should prevail."

The case of State v. Washington (13 S.C. 453), is relied on by the solicitor. But there, too, we find that the omission complained of was supplied by other parts of the indictment. Here, however, the day on which the offence is charged to have been committed is left entirely blank, and there is nothing in the indictment to supply the deficiency. The best that can be said of it is that it was some day in the month of March, 1885, but what particular day is not designated or even indicated in any way whatever.

In view of the authorities above cited and quoted from we cannot hold that this indictment is sufficient, especially when we are told in 1 Chitty Cr. Law, 218, that it has been held that " an indictment for battery, setting forth that the defendant beat so many of the king's subjects...