66 Miss. 26 | Miss. | 1888
delivered the opinion of the court.
Appellant was indicted in May, 1888, for carrying a concealed weapon in January, 1888. He moved to quash the indictment, because the act with which he was charged was not an offense at the date of its alleged commission, and there was no law by which such act, committed at that date, could be punished. The motion was overruled, and the defendant was convicted and appealed.
The act of March the 9th, 1888, amending the law in regard to carrying concealed weapons, changed the character of, and the penalties for, the offense, in such manner as to render it an ex post faoto law as to such offenses committed prior to that date, and it left no law in force by which they could be punished. The effect of the act was, that carrying concealed weapons before its passage, was no longer an offense under the laws of the state, and that carrying concealed weapons after its passage, was an offense, punishable as therein provided. Lindzey v. The State, 65 Miss. 542.
In this condition of the law, the indictment charged no offense. If appellant had pleaded guilty, he could not have been punished under it.
On demurrer or motion to quash, it is admitted, and must be assumed, that the facts stated in the indictment are true, and that the offense was committed at the time therein specified. If it be charged, that the act was committed, at a time, when it was no offense, the indictment will be insufficient. 1 Bish. Cr. Pro., §§ 403, 404.
That is the case at bar, and as the indictment, fixes the date of the act, at a time, when it constituted no violation of law, it is not relieved by § 3013 of the code which provides, that “ no indictment for any offense, shall be held insufficient, for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened.” The infirmity of the indictment, is not a failure to state the time at which the offense was committed, nor for stating it imperfectly, or on a day
Besides, it may be said that time is of the essence of the offense in cases like the one at bar. The essence of an offense is some essential element or constituent, without which it would not be an offense. Time is of the essence here, because it depends upon the time when the act was committed, whether it was an offense punishable by law or not. “ When,” says the supreme court of Massachusetts, “ a statute makes an act punishable from and after a given day, the time of the commission of the act is an essential ingredient of the offense, to the extent that it must be alleged to have been after that day.” Com. v. Maloney, 112 Mass. 283.
Reversed and dismissed.
