Werner v. State , 51 Ga. 426 ( 1874 )

Trippe, Judge.

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 are several exceptions which prevent the rule from being of universal application. One is where written instruments are pleaded. If their dates be stated they must correspond with the dates of those produced in evidence. If any date is given in the pleading which is to be proved by matter of record, it must be proved as stated: 11 East, 508; 4 T. R., 590. So when time is of the essence of the offense, it must be correctly alleged and proved. In this case, keeping open a tippling house is not an offense prohibited by law. It becomes penal only by its being done on the Sabbath day. It is the time when — the character of the day on which the act is done — that constitutes the offense. It was no violation of law to keep open the house, nor to keep it open on Friday, nor on the fourth day of April, 1873, or the fourth day of any other month, that did not fall on Sunday.

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 general rules as governing. the pleadings in both classes of cases : 3 Starkie on Evidence, 1539, 1542; 1 Chitty’s Pleadings, 263; 1 Chitty’s Criminal Law, 294, 295. Now, if a declaration alleged that the defendant was indebted to plaintiff a certain sum, and on a certain day had paid it, or on a certain day had paid a claim which was now due and unpaid, would not the pleadings or petition be void for uncertainty, and demurrable? And if an indictment show in one part that the defendant has violated no law, can it hold him as guilty because it so charges him in another part, by stating facts in utter conflict with the preceding allegation ? Pleadings which are so contradictory, or which contain such conflicting statements that they show nothing, are a legal nullity, or at least no legal judgment can be rendered on them. The holding we make is not in conflict with what was said in Connor vs. The State, 25 Georgia, 515, that an indictment is good although an impossible day be stated as that on which the offense was committed. In that case, time was not of the essence of the offense. The act charged was a crime, no matter what the day or year was on which' it was committed, provided it was within the statute of limitations. "What has been said shows that this decision is put on altogether different grounds than those set up in the remarks of Judge Lumpkin in Connor vs. The State. Judge Penning, in his concurring opinion in that case, (Judge McDonald dissented from the judgment rendered,) recognized that there were cases where time was a matter affecting the real merits of the case. The same was done in Dacey vs. The State, 17 Georgia, 439. Where that is so, as it is here, an indictment cannot be sustained, which, charging an act to have been done on Friday, thereby showing it an innocent act, seeks to convert it into a criminal one by calling Friday the Sabbath day. Mere technicalities may generally be disregarded, but distinct, clear and irreconcilable contradictions vitiate pleadings both criminal and civil.

Judgment reversed.