Opinion
(Spring Term, 1802.)
An indictment, charging the offense to have been committed in November, 1801, and in the 25th year of American Independence, held to be bad, and the judgment arrested, because the offense is charged to have been committed in two different years.
The defendant was indicted for horse stealing in Salisbury Superior Court of Law, March Term, 1802. The indictment laid the offense "on the thirtieth day of November, in the year of our Lord one thousand eight hundred and one, and in the 25th year of the Independence of the State." The defendant, being tried and convicted on this indictment, moved in arrest of judgment, and assigned the following reason, to wit: "The offense laid in the bill of indictment is charged to have been committed in the twenty-fifth year of American Independence; whereas, in truth and in fact, it was done in the twenty-sixth year of the said independence, as is apparent in the form of the indictment." (533)
The fact is charged to be committed on the 30th day of November, in the 25th year of the Independence of the State, and in the year of our Lord 1801, which is in the 26th year of Independence; therefore, charged to have been committed in two different years; which is contradictory, and vitiates the indictment.
No indictment can be good without precisely showing a certain year and day, of the material facts alleged in it. 2 Hawk. P.C., 235. It is certain that if the indictment lays the offense on an uncertain or impossible day, as where it lays on a future day, or lays one and the same offense at different days, etc., it will be held bad. Ibid. This is expressly the case in question. The offense is charged to have been committed on the same month in two different years, which is impossible. We are therefore of opinion that the judgment should be arrested.
NOTE. — See State v. Sexton, 10 N.C. 184; State v. Woodman, ibid., 384.