41 Vt. 691 | Vt. | 1869
It is a fundamental rule of criminal pleading that the material facts must be averred in the complaint or indictment with certainty as to time and place. While, as stated in. State v. Coolc, 38 Vt., 438, this rule does not apply to every merely descriptive averment, when its only office is to so qualify the object acted upon as to make it a proper subject of complaint, it is never to be disregarded in alleging the acts complained of. Certainty in averments of time is of more importance than truth, for the proof is not in ordinary cases limited to the day alleged. To constitute a sufficient averment, the year, month and day must be particularly stated, and uncertainty in either of these respects is a defect not cured by verdict. Arch. Or. Pl.^ 11, 14. The form provided by statute for complaints upon the liquor law, instead of dispensing with, requires this averment. The act complained of in this case is set forth in the complaint as having been done on or about the 2d day of January, A. D. 1867. “ On or about the second day” is not a day certain but altogether uncertain. The complaint is therefore insufficient to support a judgment, and the respondent’s exceptions are sustained and Judgment is arrested.
