State v. Lavake

• Decision Date: 07 July 1880
• Citation: 26 Minn. 526
• Parties: STATE OF MINNESOTA <I>vs.</I> LOUIS LAVAKE.
• Court: Minnesota Supreme Court

26 Minn. 526

STATE OF MINNESOTAvs.

LOUIS LAVAKE.

Supreme Court of Minnesota.

July 7, 1880.

Case certified from the district court for Lyon and Lincoln counties, Cox, J., presiding, pursuant to Gen. St. 1878, c. 117, § 11.

Chas. M. Start, Attorney General, for the State.

Mathews & Andrews, for defendant.

BERRY, J.

The following indictment was found against the defendant, viz.:

"THE DISTRICT COURT FOR THE COUNTIES OF LYON AND LINCOLN, AND STATE OF MINNESOTA.

"The State of Minnesota, plaintiff, vs. Lewis Lavake, defendant.

"Lewis Lavake is accused by the grand jury of the counties of Lyon and Lincoln, by this indictment, of selling and disposing of spirituous, vinous, fermented and malt liquors, in a less quantity than five gallons, without first having obtained a license therefor, committed as follows: The said Lewis Lavake, on or about the 15th day of November, A. D. 1879, at the town of Lake Benton, in said county of Lincoln, did sell and dispose of, to one Beckley Wolcott, one pint of malt liquor, to wit, beer, of the value of ten cents; one pint of gin, of the value of ten cents; one pint of brandy, of the value of ten cents; one pint of whisky, of the value of ten cents, — he, the said Lewis Lavake, not having a license to sell said liquors, — contrary to the statute in such case made and provided, and against the peace and dignity of the state of Minnesota. Dated at Marshall, in the county of Lyon and state of Minnesota, the 4th day of December, A. D. 1879.

                                                  "W. S. DIBBLE
                                           "Foreman of the Grand Jury."
                

The defendant having been convicted, the case has been certified here for our opinion upon four objections to the indictment. Objection first is that the indictment does not charge a day certain on which the offence was committed. The statute answers this objection, when it provides in Gen. St. 1878, c. 108, § 7, that "the precise time at which the offence was committed need not be stated in the indictment, but may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offence;" and in section 10, that an indictment is sufficient if it can be understood from it that the offence was committed at some time prior to the finding of the same. It is not only not necessary to allege the precise time of the commission of an offence, but it is equally unnecessary to prove the time alleged, except in the rare cases in which time is material. Hence there can be no reason for holding that the indictment must charge that the offence was committed on a precisely specified day. This view is also supported by section 4 of the same chapter, which, in enumerating the respects in which an indictment is required to be "certain," makes no mention of the date of the commission of the...