Werner v. The State Of Ga.

• Decision Date: 31 January 1874
• Parties: Herman Werner, plaintiff in error. v. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

51 Ga. 426

Herman Werner, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Criminal law. Indictment. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.

Werner was placed on trial upon an indictment charging him with the offense of misdemeanor, the only material portion of which was as follows: "For that the said Herman Werner, in the county aforesaid, on the fourth day of April, in the year of our Lord, eighteen hundred and seventy-three, being the Sabbath day, did keep open a tippling house." The defendant pleaded not guilty. The jury found to the contrary. He moved that judgment be arrested because the indictment showed upon its face that the day on which the tippling house was kept open, was not the Sabbath, as the court must take judicial notice of the fact that April 4th, 1873, was a week-day. The motion was overruled and defendant excepted.

L. E. Bleckley, for plaintiff in error.

John T. Glenn, solicitor general, for the state.

Trippe, Judge.

The indictment charged the defendant with keeping open a tippling house "on the fourth day of April, 1873, being the Sabbath day." The fourth day of April, 1873, was Friday. Was it a good indictment? We are fully aware of the general rule, that though a day and year must be alleged in every indictment, time is not material, and that a different day from the one laid maygenerally be proved, provided it be within the period pre-scribed by the statute of limitations. But there *are several exceptions which prevent the rule from being of universal application. One is where written instruments are pleaded. If their dates be stated they must correspond with the dates of those produced in evidence. If any date is given in the pleading which is to be proved by matter of record, it must be proved as stated: 11 East, 508; 4 T. R., 590. So when time is of the essence of the offense, it must be correctly alleged and proved. In this case, keeping open a tippling house is not an offense prohibited by law. It becomes penal only by its being done on the Sabbath day. It is the time when—the character of the day on which the act is done—that constitutes the offense. It was no violation of law to keep open the house, nor to keep it open on Friday, nor on the fourth day of April, 1873, or the fourth day of any other month, that did not fall on Sunday.

As courts will judicially recognize the coincidence of the days of the month with those of the week, (1 Greenleaf's Evidence, section 5,) this indictment was equivalent to charging the defendant with keeping open a tippling house on Friday, the 4th day of April, 1873, being the Sabbath day. Could an indictment be sustained with such a flat contradiction on its face? It alleges the act to have been done on one day, which would have made it an...