BOURQUIN, District Judge.
[1] Indictment presented October 26, 1916. Charge, violation of Anti-Drug Act (38 Stat. 785), in that defenclant, on May 13, 1916, gave an order for opium, which “was thereafter "accepted,” and “after the acceptance” he failed to preserve a duplicate thereof “in such a way as to be readily accessible,” con-,, trary to law. General demurrer; the objection being the offense not alleged of a day certain. The offense would be committed when ready accessibility first failéd after the order’s acceptance and is capable of continuity. It might have been committed prior to discovery of the fact and of a date not determinable. The indictment refers to things past and an offense completed, and at least of date between acceptance of the order and indictment.
[2] The general rule is that, even though a grand jury has not evidence of the exact date of an offense, and though its oath is to true presentment make, and though time be not of the essence, it must in the indictment allege the offense of a day certain. To escape the sometime difficulty thus created is another and necessary rule that at trial the day alleged may- be disregarded, and the offense proven as of any day prior to indictment and within limitations. See Redbetter v. U. S., 170 U.S. 606" court="SCOTUS" date_filed="1898-05-23" href="https://app.midpage.ai/document/ledbetter-v-united-states-94884?utm_source=webapp" opinion_id="94884">170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162" court="SCOTUS" date_filed="1898-05-23" href="https://app.midpage.ai/document/ledbetter-v-united-states-94884?utm_source=webapp" opinion_id="94884">42 L. Ed. 1162.
[3] Perhaps the interests of both accuser and accused and good-pleading require the indictment shall definitely allege the date of the offense when known. But to compel it to be alleged when unknown often defeats the objects of the requirement, is illogical, falsified by the proof, and works to the prejudice of both parties and to the impairment of justice. At any rate the- first rule is emasculated, “weaseled,” by the second, and in the main is but a technicality of time-honored precedent. So in England and elsewhere are statutes that no indictment shall be holden insufficient for failure to allege the time, or for erroneous allegation thereof, when time is not of the essence. And under such circumstances the allegation is so far of form, rather than of substance, that it is believed to be within section 1025, R. S. (Comp. St. 1913, § 1691), nullifying defects of form and accomplishing the same statutory end.
[4-6] Herein, however, time is.of the essence; that is, the offense can be committed only within two years after acceptance of the order. The indictment must allege the offense was committed within the essential period, or it fails to allege an offense. Yet to such cases the rules may have a qualified application—the offense to be alleged of a day certain within the period wherein it can alone be committed, *731and the proof to be of any day within such period. So is it of offenses committable only on Sunday. A definite Sunday is alleged, but another or of different date may be the proof. See 1 Bishop, Cr. Pro. § 399.
[7] Save to the extent indicated, the allegation of time, even where of the essence, is formal, rather than of substance; and so section 1025, R. S., saves the indictment from insufficiency, when the allegation is, as here, no more definite than that of some unnamed date within the essential period, and when, as here, it is believed such allegation does not tend to the prejudice of defendant.
[8, 9] Furthermore, to the requirement that a day certain be alleged are two fairly recognized exceptions: Misdemeanors, and offenses of omission rather than of commission. See U. S. v. Smith, Fed. Cas. No. 16338; 1 Bishop, Cr. Pro. § 398. The second, perhaps, because no one save the accused may know when the omission first occurred, though any day it continued would serve as a day certain. In its nature the offense herein is but a misdemeanor—failure to obey an administrative regulation, a mere statutory infraction, and not a true crime, though by the arbitrary classification of section 335, Penal Code, made a felony, as are too many trivial violations of federal law. The said section harks back to barbaric days, and ought to be repealed.
[10] Whether or not the first exception applies, the second does; the charge being omission to perform a statutory duty, failure to preserve with ready accessibility, a duplicate of the order accepted.
Demurrer overruled.