State v. Sammons

• Decision Date: 22 April 1884
• Docket Number: 11,587
• Citation: 95 Ind. 22
• Parties: The State v. Sammons
• Court: Indiana Supreme Court

95 Ind. 22

The State v. Sammons

No. 11,587

Supreme Court of Indiana

April 22, 1884

From the Newton Circuit Court.

The judgment is reversed, at the costs of appellee.

F. T Hord, Attorney General, M. H. Walker, Prosecuting Attorney and I. H. Phares, for the State.

OPINION

Zollars J.

An indictment was returned against appellee, which charges him with having sold intoxicating liquors in less quantities than a quart, without a license. The indictment was quashed; the State appeals. The portion of the indictment which charges the time of the sale is as follows: "That one Nicholas Sammons, late of said county, on the 15th day of March, A. D 188-, at said county," etc. It will be noticed that while the day and month are stated, the year is not stated, unless it be the year, A D. 188.

We are not favored with a brief on behalf of appellee, nor have counsel for the State rendered us any assistance, except to call our attention to the statutes.

Their contention is that, in cases of this character, under our present statutes, an indictment will not be bad because of a failure to state a time when the offence was committed, nor because of an imperfect statement of such time. The general rule has been, that the indictment should charge a day, month and year, as the time when the crime was committed, and that in the absence of such charge the indictment will be ill.

This is the rule as we received it from the mother country, and as it has been generally adopted and practiced in the States.

Where time is not of the essence of the offence, it has not been the rule to require proof of the time as charged. In such cases, the time is one of the least important elements necessary to a conviction, and hence it is sufficient to show that the crime was committed before the return of the indictment, and within the period fixed by the statute of limitations, where such limits are fixed. Time is thus more a matter of form in pleading, than of substance.

Mr. Bishop, in his Criminal Procedure, Vol. 1 (2d ed.), sec. 386, says: "The averment of time is altogether formal, since it is unnecessary to prove the offence to have been committed at the time alleged in the indictment, unless some time be limited for the prosecution, or time itself be material to the constitution of the offence. These averments, therefore, convey, in general, little information either to the defendant or his judges. It is, nevertheless, a general rule, that the time and place of every material fact must be plainly and consistently alleged; and such a degree of precision does the law exact in this respect, that any uncertainty or incongruity in the description of time and place will vitiate the indictment."

Many of the reasons which led to strictness in criminal pleading and practice have ceased to exist in the changed order of things, and the tendency of the courts and legislatures has been to liberalize, and adopt a less strict and formal procedure, keeping in view, of course, the protection of society, and the safety and liberty of the citizen. With this idea in view, the Legislature passed an act with reference to criminal pleading and practice, one section of which provides as follows: "The precise time of the commission of an offence need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offence." 2 R. S. 1876, 384, section 56.

This section, it will be observed, does not dispense with the statement of a time, but only with the precise time of the commission of the offence charged. It is really an enactment into a law of what was the rule before. Hampton v. State, 8 Ind. 336; Clark v. State, 34 Ind. 436.

In the case last cited, it was held that the day, month, and year should be stated. Mr. Justice Worden, in speaking of the above statute, said: "The effect of the statute is the same as if it read as follows: 'The real time of the commission of an offence need not be stated in the indictment; but it is sufficient if shown by the proof to have been within the statute of limitation, except,'" etc. Subsequent rulings are in harmony with this. The statute, with some enlargement, has been carried into the revision as section 1738, R. S. 1881.

Others of the States have adopted similar statutes. The courts of some of those States have held that, notwithstanding the statutes, a day, month and year must be stated in charging an offence; and others, that it is sufficient to state the year only, or make the general charge in the words of the statute, that the offence was committed before the return of the indictment. King v. State, 3 Heisk. (Tenn.) 148; People v. Kelly, 6 Cal. 210; Cokely v. State, 4 Ia. 477; Stevenson v. State, 5 Baxter (Tenn.) 681; State v. Gibbs, 6 Baxter (Tenn.) 238; State v. Parker, 5 Lea (Tenn.) 568.

It will be noticed that the section of the statute, above set out, makes an exception when the time is "an indispensable ingredient in the offence." When such is the case, the strictness of the old rules of pleading is not relaxed by that section. But, even as to such cases, the strictness of the old rules is relaxed by the subsequent section 61, 2 R. S. 1876, p. 386, in which it was provided that no indictment shall be quashed for the want of an allegation of the time and place of any material fact, when the venue and time have once been stated in the indictment or information. Thus the law stood until the revision of 1881, when the above provision was enlarged and carried into it, and another added, upon which counsel for the State rely, and which presents the real question for decision. Section 1756, R. S. 1881, provides as follows: "No indictment or information shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment, or other proceeding be stayed, arrested, or in any manner affected, for any of the following defects: * * * *

"Eighth. For omitting to state the time at which the offence was committed in any case in which time is not the essence of the offence; nor for stating the time imperfectly, unless time is of the essence of the offence."

In the time we have been able to give to the investigation we have found no statutes, elsewhere, so broad and comprehensive as this, except section 24 of Ch. 100 of 14 and 15 Vict., set out in 1 Archbold's Criminal Practice and Pleading, p. 260, and the statute of Missouri.

We have found no direct adjudication upon the English statute. Its terms are so comprehensive that there seems to be not much room for construction. It is said by an English writer, in speaking of this statute: "It was usual to state the time when the offence was committed; but now the omission of the statement of time at which the offence was committed, in any case where time is not of the essence of the offence, * * is immaterial." Dearsly Criminal Process, p. 22.

In the case of State v. Stumbo, 26 Mo. 306, it is said: "The only objection to the indictment is that it omits to state the year in which the offence was committed. This objection is disposed of by the 27th section of article 4 of the act regulating proceedings in criminal cases, (R. C 1855, p. 1176,) which declares that no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, 'for omitting to state the time at which the offence was committed in any case where time is...