41 W. Va. 599 | W. Va. | 1896
Jack Pennington was sentenced in the Criminal Court of Mercer county to the penitentiary on the charge of incest, and, being refused a writ of error by the Circuit Court of Mercer, brings the case to this Court.
The second flaw in the indictment suggested is that while it alleges that the woman was the daughter of the defendant’s brother, the name of that brother is not specified. The indictment seems sufficiently certain and definite in pointing out the particular person with whom the offense was committed. She might be a person of that name, and daughter of one not a brother; but the defendant could prove that as a defense, and that consideration does not render so definite an indictment insufficient. In State v. Brown, 47 Ohio St. 102 (23 N. E. 747) an indictment which named the woman, and alleged her to be a niece of the man, and not giving her father’s name, was held sufficient.
Another point made against the indictment is that it charges the act to have been “on the 13th day of August, July, 1894.” Under section 10, chapter 158, Code 1891 (providing that no indictment shall be held invalid for “omitting to state, or stating imperfectly, the time at which the offense was committed, when time is not the essence of the offense”) I would state the law to be that, where no statute of limitation bars, you may wholly omit the date of the offense from the indictment, unless it he one of the rare offenses where time enters into its essence; but, where there is a limitation, you must state date, so it appear the offense is not barred. Where you do state the date, a variance between that date and the proof is immaterial, in any case, at common-law, so you prove it to be at such a date as brings it within the period of the statute, if any applies. Where, in any class of cases, whether a bar applies or not, there is an attempt to state date, but its statement is imperfect, it is immaterial, unless the statement shows the offense barred. This is a case of imperfect statement, and is cured by the statute. State v. Bruce, 26 W. Va. 153; State v. Ball, 30 W. Va. 382 (4 S. E. 645); Arrington v. Com. 87 Va. 96 (12 S. E. 224). Judgment affirmed.