United States v. McKinley

• Citation: 127 F. 168
• Decision Date: 09 December 1903
• Docket Number: 2,805.
• Parties: UNITED STATES v. McKINLEY et al. SAME v. WOOD.
• Court: U.S. District Court — District of Oregon

127 F. 168

UNITED STATES v. McKINLEY et al.

SAME v. WOOD.

No. 2,805.

United States Circuit Court, D. Oregon.

December 9, 1903

John H Hall, U.S. Atty.

Thomas O'Day and F. P. Mays, for defendants McKinley et al.

John M Gearin, for defendant Wood.

BELLINGER District Judge.

The former of these cases was heretofore heard upon demurrer involving the point hereinafter discussed, but not suggested in that argument or considered in the opinion rendered. The question now presented involves the sufficiency of the indictment in its allegation as to the time when the alleged offense was committed; the allegations in the indictments in both these cases as to time being that the defendants did 'on or about' a certain date commit the offenses charged.

The case of United States v. Winslow, 3 Sawy. 342, Fed Cas. No. 16,742, is mainly relied upon to sustain the contention that an allegation that the crime charged was committed on or about a certain date is insufficient. A demurrer was sustained to the indictment in that case upon this ground. As to the particular question the court says:

'Every indictment must allege a day and a year certain on which the offense was committed. 1 Bish.C.L. § 239. This is the common-law rule. The Code of Criminal Procedure of this state, which has been adopted by this court as a rule of practice, does not change the law. On the contrary, the form of an indictment given in section 70 (Deady's Gen. Laws, p. 453) indicates an absolute averment as to the time of committing the offense. An allegation that a crime was committed 'on or about' a certain day does not show but that the action is barred by lapse of time.'

The apparent lack of consideration of the particular question in the paragraph quoted is explained by the fact that the court had already fully considered another ground of demurrer, upon which the indictment was held to be insufficient. The reason for the rule stated is that the words 'on or about' render the time of the offense so uncertain that it does not appear but that the action is barred by the statute of limitations.

The Supreme Court of the state of Washington in State v Williams, 13 Wash. 338, 43 P. 15, holds the opposite of the rule here laid down. The Code of Washington, under which this allegation is sustained, is identical with that of Oregon, and the forms prescribed for indictments are identical in the two states. The law of Washington, like that of Oregon, requires the indictment to show that the crime was committed some time prior to the finding of the indictment, and within the time limited by law for the commencement of an action therefor. The Washington Case, therefore, holds against the contention that the words 'on or about' render the time so uncertain that it cannot be known from the indictment within what month or year the crime was committed. The Supreme Court of Montana in State v. Thompson, 10 Mont. 558, 27 P. 349, holds that the words 'on or about' are a sufficient allegation in an indictment as to time. That court quotes from the case of United States v. Winslow, 3 Sawy. 342, Fed. Cas. No. 16,742, and undertakes to distinguish it from the case before it, upon the ground that the provisions in the Montana statute seem to change the common-law rule. But the Montana Supreme Court overlooked the fact that the Oregon statute, which the case of United States v. Winslow says does not change the common-law rule, is the same as the Montana statute. Moreover, the statute of Montana requires the indictment to show that the action is not barred, and if the words 'on or about' are too uncertain for this in any case they are so in all cases. There is no form of indictment prescribed in Montana, but the most that is claimed for the form prescribed in Oregon (the same form is prescribed in Washington) is that it indicates an absolute averment as to the time of committing the offense. The Supreme Court of Montana refers to this, and speaking of the statute of Montana uses this language: 'Instead of indicating an absolute averment of time, it says that the precise time need not be stated. ' But the Oregon statute does the same thing. It provides that the precise time at which the crime was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof, and...