Laws

Campo- donico -v Oregon Im Post Date: Sun, 27 Jul 2008 4:38:25 +0000
Where the appellant did not appear at the hearing of the case, and judgment was entered one month afterwards, and the court adjourned two days later, a motion made thereafter by the appel- lant to open the case and for leave to file a brief was overrule d Watterson Y Payne, 154 U S 534 file them until after the time prescribe d The disposition of the courts, however, is not to entirely disregard a brief filed within a reasonable time before the hearin g 1 But to prevent a dis- 1 Refusing Privilege of Oral Argu- ment. The rule of the Supreme Court of California, prescribing that appel- lant's points shall be filed within a cer- tain time, does not involve the pen- alty of an affirmance of the judgment without considering the merits as a result of noncompliance with it; but the court may, in its discretion, re- fuse the appellant the privilege of making an oral argument. Campo- donico -v Oregon Im P Co, 85Cal218 But see Sorensen v Dorris (Ca L, 1894), 37 Pac Rep 870 Allowed to Remain as Argument on Merit S And where the appellant files a brief after the expiration of the prescribed time, it may be allowed to remain as an argument on the merits only, all the technical points as to the admissibility of evidence being taken to be waived, and respondent may be permitted to file a brief on the merit S Peek v Reek, 75Cal298 Illinois Presumption of Filing within Ti Me On appeal from the Appellate Court of Illinois to the Supreme Court it was assigned as error that the court refused to affirm a judgment when the brief of the appellant in that court had not been filed in ti Me But as such failure did not appear in the rec- ord otherwise than merely by the mo- tion to dismiss, the Supreme Court held that it must be presumed the brief was filed in ti Me Mutual Bld g, etc, Asso C -v Tascott, 143 111 305 The motion to strike out the briefs of appellant for failure to file within time, and affirm, must be made be- fore the case is reached for argu- ment, if the brief was filed a sufficient time before then to permit the motion to be mad e Goudy v Lake View, 27 111 App 505 Where the appellant filed his brief after the time allowed, but on the same day the appellee obtained an enlargement of the time within which to file his own brief, he was deemed to have waived his right to insist on an affirmanc e Yates v Thompson, 44 111 App 145 Distinction between Affirmance and Dismissa L In this last case the court said they had always been unwilling to enforce the rule requiring an affirm-' ance, and they would change the pen- alty of the rule from an affirmance to a dismissal, which would not be a bar, and then they would enforce it with- out compunctio N In Criminal Cases the Supreme Court will not affirm the judgment of the court below merely because the plaintiff in error failed to file his brief within the time prescribed by rule of court.

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A failure to file Post Date: Sun, 27 Jul 2008 4:26:48 +0000
Presser v People, 98 111 406 Indiana The rule requiring the filing of briefs in sixty days after the submission of a cause applies as well to those submitted by agreement as to those submitted on call, and as well to those appealed in term of the court below as to those appealed in vaca- tio N And the fact that a brief has been filed after the time allowed is no answer to a motion to dismis S Mur- ray v Williamson, 79 Ind 287; Sa- gasser v Wynn, 88 Ind 226 But see Heckelman v Rupp, 85 Ind 286; Shulties v Keiser, 95 Ind 159 And the fact that the clerk failed to enter the dismissal cannot waive or invali- date the rul e Stephens v Stephens, 51 Ind 542; Murray v Williamson, 79 Ind 287; Island Coal Co v Clem- mitt (Ind App, 1895), 40 N E Rep Superscdeas Brief A " supersedeas brief " filed within the required time, which merely states the nature and result of the case, the errors assigned in the trial court, and the further fact that appellant relies for reversal on the rulings of the trial court in over- ruling certain demurrers and appel- lant's motion for a new trial, without discussing any single point, is not suf- ficient to prevent a dismissal of the appea L Island Coal Co v Clemmitt (Ind App, 1895), 40 N E Rep 143 Compare Railway Co v Widman, 9 Ind App 190 Petition by Appellees for Rehearin g Where the appellees failed to file any brief or argument until after the de- termination of the case, their petition fora rehearing was dismisse d " Par- ties and attorneys, who have gained decisions in their favor in the trial court, ought not to compel this court to grope in the dark, as it were, for the grounds of those decisions and the missal a good and sufficient excuse for the delay must be shown, that is, it must appear to the court that the delay was unavoidabl e authorities on which they rest, when, in most cases, they could so easily fur- nish us with the requisite informa- tio N" Lawrence County v Hall, 70 Ind 469 The effect of granting a rehearing is to put the case in the same condition as if it had not been submitte d Accord- ingly, where on a second submission appellant's brief was on file, a motion to dismiss because the brief was not filed within sixty days after the origi- nal submission was overrule d Crown Point First Nat Bank v Richmond First Nat Bank, 76 Ind 561 Hesitation to Strike out Brief In Iowa the Supreme Court hesitate to strike arguments from the file for any reason, as they desire " to have all the light that can be shed upon a case ; and usually, instead of doing so, give an opportunity to reply to them, when they have not been filed in ti Me In no case would we strike an argument unless it should appear that prej- udice might result to the other party therefro M But we cannot hold that prejudice would result from the discus- sion of a case in an argument filed too late, if the other party expresses no desire or purpose to reply to it." Kellam v McAlpine, 63 Iowa 251 The court will not entertain a mo- tion to strike from the files the ap- pellee's brief when the appellant has not assigned errors with the requisite exactnes S Anheuser-Busch Bre W Asso C v Oxley (Iowa, 1893), 53 N W Rep 1075; Anheuser-Busch Bre W Asso C v Gates (Iowa, 1893), 53 N W Rep 1076 In this state, after causes have been prepared for submission on the part of the appellants, the court will not sum- marily affirm them on the ground of delay in presenting abstracts and ar- gument S If the other party has been prejudiced, he must seek redress in some other wa Y Fowler v Straw- berry Hill, 74 Iowa 644 And motions to strike out an additional abstract and argument filed by the appellee, and to tax the costs of printing the same, on the ground that they were not served on the appellant within the time reqirred by rule of court, were overruled in Doolittle v Dooiittle, 78 Iowa 691 Inflicting Penalties Taxation of Costs or Continuanc e But although a brief filed after the time prescribed will not be stricken out on motion, the court, when asked, will tax the costs of such brief to the party filing it unless good excuse is shown for the failure to file promptl Y Renwick v Bancroft, 59 Iowa 116 The same rule applies to the appellee's brief Smith v Mc- Fadden, 56 Iowa 482 And in a proper case the court would inflict penalties or continue the case on requeSt Cox v Forest City, etc, RCo, 66 Iowa 289 Loss of Oral Argument. A failure to file a brief within the time allowed simply entails the loss of the right to be heard in oral argument.

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State v Moore, 5 Wash Post Date: Sun, 27 Jul 2008 4:07:15 +0000
Bartle v Des Moines, 37 Iowa 635 Counsel in Default Mislea d By rule, arguments filed after the cause has been submitted are not sent to the justice S But where the counsel in default was probably misled as to the time when the cause was set for hear- ing, and in view of other causes, the rule was not applie d Wells v Bur- lington, etc, RCo, 56 Iowa 520 In Montana, while the failure to file briefs within the time allowed maybe cause for the summary disposal of the appeal, no rule has been adopted pro- viding for its dismissal in such event. Logan v Rickards, 14 Mont 334 Washingto N Where a brief was duly filed, and notice of the filing was served on the opposite party on the same day that he made a motion to dismiss, but previous thereto, the mo- tion was not granted, proof of the no- tice being produced at the hearing, although not filed at the time the no- tice was served, and it appearing that the appellant was acting in good faith, and without any intention to delay the proceedings of the court. State v Moore, 5 Wash 205 In Colorado it is held that briefs in the Supreme Court must be filed with- in the required time or the appeal will be dismisse d "Suitors must exer- cise diligenc e" Denver, etc, RCo v Woy, 7 Colo556; Hewlett v Tut- tle, 10 Colo222; Denver, etc, RCo v Wilford, 13 Colo551; Owen v Going, 13 Colo290 Additional Time may be granted by the court in its discretion, or by agreement between the partie S* But an order granting such an extension of time is not a rescission of a rule of court requir- ing the briefs to be filed within a certain time, but a mere modi- fication of it, and if the brief is not filed within such extended time the judgment will be affirme d 3 v ADDITIONAL AND REPLY BRIEF S When a brief sufficient to prevent a dismissal has been filed, an additional or supplemental 1 Lawyers Too Bus Y An appeal will not be dismissed for unavoidable delay in filing briefs; but the fact that two members of a firm of three law- yers have been so continuously en- gaged in other matters that it was impossible to devote any time to the particular case is not a sufficient ex- cuse to defeat a motion to dismiss for want of a brief, where the time limited for filing has long since passe d Shep- erd v Sheperd, 4 Wash 615 Printer's Negligenc e In case of printer's negligence causing failure to file brief in time, party will be re- lieved from Default Neppach v Jones (Oregon, 1895), 39 Pac Rep 999 Attorney from Another Stat e And it is not a sufficient answer to a motion to dismiss, that the attorney whose duty it was to file the briefs was from another state, and was ignorant of the time allowe d Cronkhitez'.

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Sorensen v Dorris (Ca L Post Date: Sun, 27 Jul 2008 3:54:52 +0000
Bothwell, 3 Wyoming 739 Not Returned by Opposing Counse L As to whether the excuse for failure to file in time, that the appellant had furnished his brief to the opposing counsel, who had not returned it, would be sufficient, see Shulties v Keiser, 95 Ind 159 Ground of ErroRThe fact that the only ground of error is the sufficiency of the complaint will not excuse a fail-, ure to file a brief within the prescribed time, although a rule of court provides that the objection on that ground may be taken at any ti Me Lacey v North Olympia Land Co, 4 Wash 261 Reinstatement. When an appeal has been dismissed for failure to file a brief in time, under a rule of court, it will not be reinstated by the court where no good excuse is shown for the delay, and the year has not yet expired, the appellant thus being able to refile the transcript without serious prejudice to himself Alex- ander v Alexander (Ind App , 1894), 36 N E Rep 293 In California, in a late case, it is held that an appeal will be dismissed where appellant fails to file his printed points and authorities within the time pre- scribed by a rule of court. Sorensen v Dorris (Ca L, 1894), 37 Pac Rep 870 2 Finlayson v Montgomery, 14 Nev 397; Goodhue v Shedd, 17 Nev 140; Mathewson v Boyle, 20 Nev 88; Holm v Roach, 25Cal37 Not a Matter of Right.

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" Per Hackney, J, in Spencer Post Date: Sun, 27 Jul 2008 3:40:13 +0000
The time may be extended by the court in its discre- tion, but is generally granted only on good cause shown, not as a matter of right. Elliott App Pro 452; San- born v Robinson, 22 Mich 92; Lacroix v Camors, 34 La An N 639 Agreement of Partie S In Wyoming, by rule of court, the time may be ex- tended by consent of the parties, or for good cause shown, before the ex- piration of the time allowe d Cronk- hite - U Bothwell, 3 Wyoming 739 In Missouri, where a cause has been taken as submitted on the regular call of the docket, and the appellant has filed no assignment of errors, state- ment, or brief, he will not subse- quently be allowed to do so, except by agreement between the parties, or good cause shown for dela Y La Belle Sav Bank v Critchlow, 38 Mo App 424 Where, relying on a stipulation be- tween the parties to have the case put at the end of the docket, the appellant failed to file his brief within the time prescribed, the rule requiring the af- firmance of the judgment was not en- forced, even though appellant's at- torney was informed by the court subsequently to the making of the stipulation that it would not be re- specte d Mutual Bld g, etc, Asso C v Tascott (111, 1891), 28 N E Rep 801 3 Lancaster v Waukegan, etc, RCo, 132 111 492 brief may generally be filed later, if so desired ; * but points not made in the original brief of the appellant may not be presented in an additional or reply brief filed after the appellee has filed his brief, and to which he has had no opportunity to repl Y 3 1 Illinoi S Under the practice of the Supreme Court of Illinois the briefs used in the Appellate Court may be filed in the former without special leave for that purpose, and counsel may, if he choose, file additional or sup- plemental brief S Devine v Edwards, 100 111 473 In Indiana, if a supersedeas brief is in itself sufficiently elaborate, and com- plies with the requisites of a brief on the merits, it will be sufficient, a L though no additional brief is filed, as is the custo M Louisville, etc, RCo v Grantham, 104 Ind 353; Louisville, etc, RCo v Widman (Ind App, 1894), 36 N E Rep 370; Heckelman v Rupp, 85 Ind 286 Service of Additional Brief S In this state copies of additional or supple- mental briefs must be furnished the opposite counse L Elliott App Pro, 451, note 2 See also Doolittle v Doolittle, 78 Iowa 691 In Louisiana the discussion in a sup^ plement to the appellant's printed ar- gument, of several points as errors as- signed upon the record, does not meet the provision of the code requiring a written assignment of error S State v Bass, 12 La An N 862 2 In Washington questions argued in the brief of the respondent and in the reply brief of the appellant, but not raised in the principal brief of the latter, cannot be considere d This results from the general rule that an appellant must assign the errors upon which he relie S Stickler v Giles, (Wash, 1894), 37 Pac Rep 293 In the case of Vestal v Morris, (Wash, 1895), 39 Pac Rep 960, it was held that, where appellant's brief con- tained little more than a statement of the case, the effect being practically to impose upon respondents the bur- den of presenting the entire cause, an exhaustive reply brief filed a short time before the argument will be stricke N The court said : "It is dif- ficult to lay down a definite rule gov- erning such matters, but we were of the opinion that the manner pursued by appellants in briefing their cause was such a substantial departure from the rules and practice as, in justice to the respondents, required the reply brief to be stricken, and the motion to strike was grante d" Indiana A question not suggested in the original brief and argument of the appellant, nor until after the brief for the appellee had been filed and the case taken up for consideration by the court, may well be deemed waive d Western Union Te L Co v, Ferris, 103 Ind 91 Appellee Given Opportunity to be Hear d But the court will not refuse to consider questions first discussed in a supplemental brief of the appel- lant, filed after the expiration of the time allowed for filing briefs under the rules, when the appellee has been given opportunity to be fully heard on the question S " The penalty for a failure to file any brief within the time limited by the rules of this court is the dismissal of the appeal, and not a refusal to consider questions pre- sented when the appeal is entertaine d We cannot decline to consider a ques- tion fairly presented by the record, and argued by the appellant, when an opportunity has been given to the appellee to be fully heard upon such questio N To do so would give force and effect to an unsubstantial and uninjurious technicality, to the detri- ment of a litigant in whose appeal there is merit." Per Hackney, J, in Spencer v Spencer, 136 Ind 414 Necessary Change of Counse L Where a point sufficient to cause a reversal of the judgment, had the record not been amended, was discussed in an appellant's brief, but, owing to a ne- cessary change of counsel, no ad- ditional brief was filed after the amendment, the court considered a point not sufficiently discussed in the brief Louisville, etc, RCo v Schmidt, 126 Ind 290 Illinois and Iowa In Illinois points not made in the opening brief may not Vie insisted on in the reply brief Illinois Cent RCo v Heisner, 45 111 App 143 Matter Specially Assigne d But although grounds for reversal must generally be discussed in the opening brief of the appellant to entitle them VI I PBINTING EXPENS e An attorney has implied power to have briefs printed at the expense of his client.

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Haskins v People, 16 Post Date: Sun, 27 Jul 2008 3:27:00 +0000
* to notice, yet a point first raised in his reply brief must be considered if it was specially assigned for erroRPurington v Akhurst, 74 111 490 But in Iowa at least the court will not reverse for errors assigned but first argued in the reply brief of the ap- pellant, without giving the appellees an opportunity to be hear d Renwickf Davenport, etc, RCo, 49 Iowa, 664 In Illinois matters not presented to the Appellate Court may not be brought to the notice of the Supreme Court, on appeal from the former, by a supplemental brief of the appellant filed after the appellee has filed his brief, and to which he has had no chance to repl Y McDaneld v Logi, 143 111 487 Supplemental Brief Disproportionately Voluminou S In Michigan, by rule of court, supplemental briefs may be printed and served upon the other party at any time before the case is placed upon the call for hearing or argument; but where an original brief contained only eight pages, present- ing but three questions, the court re- fused to consider a supplemental brief containing forty pages and presenting forty-five question S Black v Daw- son, 82 Mich 485 Additional Argument by Appelle e Where the appellee filed an amended abstract with his argument, and after- wards, to avoid the expense of a transcript, the parties filed an agree- ment as to the true state of the record, the court refused to strike out an ad- ditional argument by the appellee, with reference to the record, filed after the appellant had replied to his first argument, although such addi- tional argument would not ordinarily be considere d Meka v Brown, 84 Iowa 711 1 See Louisville, etc, RCo v Schmidt, 126 Ind 290 Insufficient Notic e A motion to amend a brief was refused where only three days' notice of the motion was give N Moore v Willard, 30 S Car 610 2 But the client will be responsible only for such number of copies as are required by the rule S Weisse v New Orleans, 10 La An N 46 As to costs and disbursements in con- nection with the printing of briefs, see article COST S 1 JURISDICTIO N At common law the crime of burglary could be prosecuted only in the county where it was committed, though it seems that when accompanied by larceny, the rule was some- times enlarge d 1 I I THE INDICTMENT GENERALLY 1 How Laid in Genera L An in- dictment for the crime of burglary must aver every essential ele- ment of the offense and everything that is essential to the punish- ment to be inflicted, whether at common law or under statute S 2 2 How Laid under Statute S Under statutory breakings, the indictment should be as at common law, unless statutes direct otherwis e 3 1 In Haskins v People, 16 N Y 348, Denio, CJ, uses this language: " Burglaries may be tried out of their proper counties in certain special cases, that is, where the goods bur- glariously taken are carried into an- other county by the offenders; but this is by positive law, and not be- cause the burglary was actually com- mitted in the county where the indict- ment is found; or, in judgment of law, is considered to have been committed ther e The fact must, therefore, be set out which brings the case within the statut e" (2 Rev Stat727, 50) See under Statutory ingredients, etc, in Indictment Generally, infr A In England, by 7 Geo Iv, C 64, 12, the trial of offenders in an adjoin- ing county was permitted, if the bur- glary was committed within five hun- dred yards of the boundary lin e 2 Russell on Crimes (gth A M e d) 49 2 Davis v State, 3 Cold W (Tenn) 77 In this case the court said that the indictment for burglary "must charge all the facts and circumstances, the presence of which are necessary to constitute the offense, with such certainty that the defendant may know whether they constitute an in- dictable offense or not." With Reasonable Particularit Y An indictment is sufficient if it distinctly charges the felonious and burglarious breaking and entering, and the felo- nious intent thereby to commit the crime, with reasonable particularit Y State -v Dooly, 64 Mo 146 See also Koster v People, 8 Mich 431; Lacy v State, 15 Wi S 13; State v Farr, 12 Rich ( S Car) 24 At Common Law, the indictment must allege that " at a time and place, the defendant, in the night, broke and en- tered a dwelling-house, which it suffi- ciently describes, with the intent to commit therein a felony, which it ade- quately particularizes; or that he com- mitted therein the felony, or bot H" 2 Bishop Cri M Pro (3d e d), 129 Under Statute S The following rule has been enunciated on the question as to how far statutory provisions do away with common-law requirements: "We think the distinction is this: When the statute punishes an offense, by its legal designation, without enumerating the acts which consti- tute it, then it is necessary to use the terms which technically charge the offense named, at common la W * * * But we think this is not necessary when the statute describes the whole offense, and the indictment charges the crime in the words of the statut e" Tully v Co M, 4 Met (Mas S) 357 Negative Allegations in Statute S As to when negative allegations should be averred in the indictment, see note under Iv 2B (3) (a), infr A See also Harris v People, 44 Mich 305 3 Koster v People, 8 Mich 431; Co M v Kaas, 3 BrewSt (Pa) 426; Hollister v Co M, 60 Pa St 103 When Burglary Same as at Common La W When this is the case, the in- dictment may, as a general rule, fol- low either common-law or statutory requirement S Shotwell v State, 43 Ark 345 When Definition Enlarge d Though the statute may enlarge the definition of burglary at common law so as to include other classes of cases, the mode of prosecution and the substan- tial requisites to a good indictment or information are the same as at com- mon la W State v Curtis, 30 La An N 814 When no Special Statutory Require- ment as to For M In State v Mcln- tire, 59 Iowa 264, it was held that though a statutory form was given Statutory Ingredients should be Allege d All the statutory ingredients of the breaking should, however, be allege d 1 Proof And the indictment as thus constituted must be proved as lai d 2 (Code, 4297), yet a nonconformity thereto, in regard to the title and names of the parties therein, was no ground for objection, in the absence of any requirement in the statute that it be strictly followe d Name of Offens e Nor need the name of the offense be stated; and it is not error if the same is wrongly state d State v Mclntire, 59 Iowa 267 1 U S v Crosby, i Hughes ( U S)454; State v Savage, 32 Me 583, i Hale p C 548 See also Powlter's Case, ii Coke Rep 316 It is a plain principle of law that where the statutes enumerate several elements as combining to create a crime, the crime cannot properly be described without including all those element S Koster v People, 8 Mich 431; Harris v People, 44 Mich 305 One accused under an indictment in form for burglary strictly cannot be sentenced under a statute denning a particular breakin g It is necessary to set forth the charge so as to bring it within the statutory description of the offense, otherwise it would be against the Bill of Rights, not appris- ing the accused of the "nature and cause of the accusation against hi M" Hollister v Co M, 60 Pa St 103 Increased Punishment for Second Of- fens e Where the statute so provides, and the increased punishment is sought to be inflicted, the indictment should state a prior convictio N People v Bosworth (Supreme Ct), 19 N Y Supp 118 When Indictment in Another Count Y Where, by statute, " burglaries may be tried out of their proper counties in certain special cases; that is, where the goods burglariously taken are carried into another county by the of- fenders, * * * the fact must therefore be set out which brings the case within the statute" (2 Rev Stat727, 50). Haskins v People, 16 N Y 350 A Charge in the Words of the Statute is usually sufficient.

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13 S W Post Date: Sun, 27 Jul 2008 3:15:30 +0000
State v Tytus, 98 N Car 705; Mason v State, 42 Ala 543; U S v Crosby, I Hughes ( U S) 454; Portwood z/ State, 29 Tex 47- But More Particularity is Required where the words of the statute are in- definite or vague, ambiguous or gen- eral; and then the indictment must so particularize as to inform the accused of the offense against him, and be so certain as to enable him to plead the verdict in bar of future prosecutions, U S v Crosby, i Hughes (U S) 454; or where it is the obvious intention of the legislature, or from the appli- cation of well-known principles of law, Portwood v State, 29 Tex 47 The Substance is Sufficient. The in- dictment is sufficient if it substantially follows the words of the statut e Stokes v State, 84 Ga 263; State v Frank, 41 La An N 596 See Harris v People, 44 Mich 307; Cunningham v Co M (Ky, 1890). 13 S W Rep 104 The Following Rule is laid down in State v Smith, 5 La An N 342: "It is the duty of a prosecuting officer to state the precise facts with which he charges the accused, and, in doing so, to use the words of the statute, if pos- sible; and if the statement of the real facts constitutes a substantial viola- tion of the statute, and can be so con- strued, without departing from the true meaning of the words, it is the duty of the court to maintain the in- formation or indictment.

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But either the language Post Date: Sun, 27 Jul 2008 3:03:26 +0000
" Synonymous Words, if used, are suffi- cient. Roberts v State, 55 Mis S 423 Same Meanin g Apt language con- veying the same meaning as the language of statute may be use d Mathews v State, 36 Tex 675 Must be Equivalent. But either the language of the statute or its equiva- lent must be use d West v State, 35 Tex 91 Also Shotwell v State, 43 Ark 345 2 State v Whit, 4 Jones (N Car) Surplusag e All matters not essen- tial to a description of the offense may be rejected as surplusage, Hammons v State, 29 Tex App 448; as, for in- stance, the expression " and a win- dow-pane out of the window," used in the indictment in Burke v State, 5 Tex App 74 In Coleman v State, 2 Tex App II I AVERMENT OF TIME 1 In General Averment Essentia L Time, being an essential element in the crime of burglary, must be stated with accuracy in the indictment.

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2 Hale p C Post Date: Sun, 27 Jul 2008 2:48:01 +0000
1 Proof And, to the extent of its materiality, it seems it must be proved as lai d 2 2 Night-time A AT COMMON LA W Inasmuch as, at com- mon law, burglary could be committed in the night-time only, and as the circumstance of the nocturnal entrance was vital to the offense, the allegation of night-time in the indictment was essen- tial, and the indictment was insufficient without it. 3 514, it is stated that in Texas the in- dictment is good in substance if, eliminating surplusage, it so avers the constituents of the offense as to ap- prise the defendant of the charge against him and enable him to plead the judgment in bar of another prose- cutio N 1 2 Hale p C 179; State v Caverly, 51 N H 446; Butler v People, 4 De N ( N Y) 70 An accurate statement of time in the indictment is necessary to afford the accused a bar to the proceedin g State v Caverly, 51 N H 446, Day, Month, Year, and HouRIn gen- eral, the day, month, and year, and also the hour, when the offense was committed, should be stated in the in- dictment. 2 Hale p C 179 See I Bishop Cri M Pro (3d e d), 387; State v g S, i Tyler ( Vt) 300 Ambiguity in this respect is a fatal defe Ct Jane v State, 3 Mo 61 In this case the venue was laid " then and there," after the mention of sev- eral different day S See also State v Jackson, 39 Me 295 Omission of the Day of the Month is likewise fatal, as where the averment of time was, "on the day of March, in the year of our Lord eight- een hundred and eighty-five, in the night of the same da Y" It was held that no specific day was state d State v Brown, 24 S Car 224 2 State v Caverly, 51 N H 446 Proof of Precise Day, or Even Year, as laid in the indictment, however, has been held not to be essentia L State v Branham, 13 S Car 392; Dacy v State, 17 Ga 442; State v g S, I Tyler ( Vt) 300 Statute of Limitations, must be Withi N However, the day proved must be one "within the term prescribed by the statute of limitations, and the day set forth in the indictment must be also some day within the statute time, or the indictment will be insuffi- cient.

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State v DawTdns, 32 Post Date: Sun, 27 Jul 2008 2:34:30 +0000
" State v g S, I Tyler ( Vt) 300 Must be Prior to Filing of Indictment. It is not necessary to allege the day correctly, if the day named is one anterior to the filing of the indict- ment. State v DawTdns, 32 S Car 23; also State v Pratt, 14 N H 458, citing 2 Haw K p C, C 46, 179, and Charnock's Case, i Sal K 288 But see State v Blaisdell, 49 N H 81, which decides that the statement of time of commission of the offense is a matter of form merely, and, if averred as on a day subsequent to the filing of the indictment, it can be amended, and at any rate is good after verdict (Ge N Stat, C 242, 13).

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