Erwen v. State

13 Mo. 306

Opinion

RYLAND, J.

The defendant was indicted for grand larceny, by the grand jury of Sfc. Louis county, was tried and convicted. He thereupon made his motion in arrest of judgment, assigning as the reason in support of the motion, the insufficiency of the indictment in this, that there is no time alleged when the felony was committed. Upon looking into the record of the proceedings of the Criminal Court, I find that the indictment w'holly omits to allege any time at which the offense was committed.

This is a fatal error ; for which the court below should have sustained the motion in arrest. It is thought unnecessary to cite authorities upon this question. Every indictment, must contain sufficient certainty in the criminal charge; and without averring some time no such certainty can he found.(

a)

íhe authorities cited by the defendant’s counsel fully sustain him in his view of the case. Let the judgment he reversed.

(a) But see, State v. Wilcoxen, 38 Mo. R. 370, where it is held that the objection that no time is stated in which the offense was committed, is disposed of by thestatute which declares that no indictment shall he deemed invalid, nor shall the trial, judgment, or other proceedings thereon he stayed, arrested, or in any manner affected for omitting to state the time at which the offense was eommited, in any case where time is not of the essence of the offense. See State v. Stumpf, 26 Mo. R. 306; 2 wag. Stat. p. 1090, § 27. Impossible day — Markley v. State, 10 Mo. R. 291.