State v. Baker

34 Me. 52

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1852
• Status: Published

Opinion

Wells, J.,

orally. — The words “or about,” cannot be treated as surplusage. If they were stricken out, the complaint would allege an exact day. But such was not the intent of their insertion. They were used to show that there was an uncertainty as to the time. The motion to amend cannot be allowed.

Writers on criminal law concur in requiring the time to be alleged. 3 Bacon’s Ab. 106; Indictment, G. 4; 4 Comyn’s Dig. 393, G. 2; 1 Chitty’s Cr. Law, 181.

But, though necessary that the time should be alleged, it is not requisite to prove that the act was done on the precise day alleged.

On the first appearance, there would seem no very strong reason for the allegation of the time. But there may be utility in it. The accused might have a right to expect the government would rely upon the day alleged, and prepare his defence accordingly. If the government should then depart from that day in their proofs, he might claim a continuance. There may also be other reasons. But whatever the reasons, the law has long been settled, requiring an allegation of the time. In this case it was not done with sufficient certainty, and for that cause the complaint is fatally defective.

Judgment arrested.