51 Ga. 426 | Ga. | 1874
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 clay from tbe one laid may generally be proved, provided it be within the period prescribed by the statute of limitations. But there
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 innocent act. Could that act be converted into a criminal one by stating that the day already given was a day which it was not and could not be ? Take the case where the doing certain things within a certain pei'iod of time is prohibited — such as killing or hunting certain animals or game in specified localities between the first of March and the first of September — if a defendant were indicted for having violated such a statute on the first day of October, would not the indictment be bad, although it had the further allegation that the day stated was within the prohibited time? There must be some certainty in pleadings, both civil and criminal. In the case of the United States vs. Brown, 3 McLean, 233, it was held that the rules of pleading are the same in civil and criminal cases. This is generally true, and many of the elementary writings give the same
Judgment reversed.