State v. O'Donnell
| Decision Date | 22 January 1889 |
| Citation | 81 Me. 271,17 A. 66 |
| Parties | STATE v. O'DONNELL. |
| Court | Maine Supreme Court |
Exceptions from superior court, Cumberland county.
Indictment against Peter O'Donnell for a liquor nuisance. By clerical error the allegation of time covered by said offense was made to read, "on the fifteenth day of May, in the year of our Lord one thousand eight hundred and seven, and on divers other days," etc., when it should have read, "on the fifteenth day of May, A. D. 1887." Testimony was limited to the period of time from the 15th day of May, 1887, to the time of the finding of said indictment; a nol. pros. having been entered as to all time prior to the 15th day of May, A. D. 1887. At the request of the defendant, the case was withdrawn from the jury after the government testimony had been put in, and the court allowed him to file a demurrer.
W. H. Looney and C. W. Goddard, for defendant. G. M. Seiders, Co. Atty., for the State.
An indictment must allege a particular day on which the offense was committed, even if it be set out with a continando. Wells v. Com., 12 Gray. 326; Shorey v. Chandler, 80 Me. 409, 15 Atl. Rep. 223; State v. Small, 80 Me. 452, 14 Atl. Rep. 942. The indictment in hand fixes the day at a date 13 years before Maine became a sovereign state, and more than 40 years before the enactment of the statute which created the offense charged, and is practically an impossible date, and hence no date. Moreover, the nol. pros. struck out the allegation of any date except these days named in the continuando, which leaves the indictment fatally defective on demurrer, as was decided in the cases above cited. Exceptions sustained.
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