
    The State vs. William B. Porter, et al.
    Indictment for hog stealing charged, that the offence was committed in January, 1851. General issue pleaded, and evidence offered, that the offence was committed in January, 1856: — Held, that such evidence was receivable; that it was not necessary to prove the time, as laid, and that the prosecution was not barred by the statute of limitations.
    BEFORE WITHERS, J., AT UNION, FALL TERM, 1856.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    
      “ Tbe defendants were indicted for stealing a sow, tbe property of one Randolph Jenkins.
    “ Wben tbe owner of tbe sow stated be bad lost ber, and sbe was taken on tbe 8tb of January, 1856, tbe defendants’ counsel objected to tbe evidence, and to any evidence of a larceny tbat occurred after tbe time laid in tbe indictment, wbicb I then learned was some time in 1851, and (it was said) tbat larceny was barred by tbe statute, as appeared on tbe face of tbe indictment. It is obvious to observe that tbe face of tbe indictment does not show tbat tbe larceny therein charged, as committed in 1851, was barred, because for aught derived from tbe indictment 'that larceny may have been committed within six months of a warrant issued for it, and if a warrant bad been issued for a larceny committed in 1850, and within six months of tbe commission of tbe offence, it would not be barred, (if barred it can be at all) though tbe bill of indictment should be found so long after as 1856. Tbe warrant is tbe beginning of a prosecution, not the presentment of tbe grand jury.
    “ Tbe real point was, and is, whether evidence of bog-stealing, committed at a time subsequent to tbat stated in tbe indictment, but anterior to tbe finding of it, and prosecuted within a few days after its commission (i. e. warrant issued) could be received. I held that it could, because the time alleged in the indictment was immaterial.
    “Whether the bar to the collection of penalties and forfeitures, after the expiration of more than six months before prosecution is begun, applies to the offence of hog-stealing, I have not decided, nor have I passed upon the matter in arrest of judgment, except in the form and in the manner above stated.
    “ As to the evidence (supposing it credible as the verdict of the jury shows it was) it was quite sufficient to establish that these defendants, being out hunting rabbits on the evening of the 8th January, 1856, when snow was upon the ground, about an hour before sundown, set the dogs on a sow found in a field, near Jenkins’ the prosecutor; enclosed, but a gap down in the fence; that they captured the sow; that she was in the mark of Jenkins; that a wagon was procured, near at hand, and the sow hauled to one Mrs. Bentley’s, (who was connected with one or more of the defendants) getting there about dark; that the sow was there butchered, the ears cut off close, (because they were so much torn by the dogs as to be of no use, said William B. Porter,) that next morning Jenkins met William B. Porter carrying home the wagon that had been used in hauling off the sow; asked him if he had not killed a hog the evening before; he admitted it; Jenkins said he believed it was his property, and would like to see it; Porter told him he could do so at Mrs. Bentley’s; he 'and another went and saw a carcass there, answering the description of his sow, (and there is no ground to doubt it was his) nor was there any evidence to show any excuse for Porter, or either of the others, running down and carrying off that sow and butchering her for use.
    
      “ Two witnesses on the part of the State, (the defence called none) one of whom was W. B. Porter’s brother-in-law, testified to bis reputation for honesty before this transaction. Nothing was said as to the character of the other defendants.
    “ The jury rendered a verdict of guilty as to all.”
    The defendants appealed, and now moved this Court in arrest of judgment, or for a new trial, on the grounds,
    In arrest of judgment:
    1. Because the indictment, on its face,'showed the offence charged was clearly barred by the statute of limitations, being for hog-stealing in January, 1851,. and the indictment was not found until March term, 1856.
    2. Because the indictment is defective, null and void in law.
    Por a new trial:
    1. Because the defendants were taken by surprise in the course taken, and declined to call witnesses when it appeared there was no offence proved against them for which they were liable to legal punishment.
    2. Because his Honor failed to charge the jury as to the legal effect of the charge being laid in the indictment in 1851, and the proof being that it was in 1856, in which it is respectfully submitted, there was an error of omission.
    3. Because the good character of the defendants, under the evidence' in the cause, entitled the defendants to a verdict of acquittal.
    Thomson, for appellant.
    
      Dawkins, solicitor, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

I suppose after tbe case of. The State vs. Youngblood, 2 McC. 241, it must be held that tbe statute of limitations (six months) applies to tbe offence of bog-stealing. If, however, it were res integra, I should hesitate much about so deciding. "N"

In this case it cannot help the prisoners. It is possible that by pleading it specially to the indictment, it might have been difficult for the State to have avoided the bar.

But pleading the general issue, and going to trial, made the case one which turned upon the facts, and when it was shown that the offence was committed 8th January, 1856,'there was no ground for the statute, and the whole case was resolved into the question whether the proof was receivable, as the indictment laid the offence on the 8th January, 1851.

There can be no plainer proposition in law, than that “ it is in no case necessary to prove the precise day or even year laid in the indictment, except when the time enters into the nature of the offence.” 1 C. 0. L. 224. It is plain that here time has nothing to do with the nature of the offence.

The other grounds in the case require no comment.

The motion is dismissed.

Wardlaw, Withees, WhitNer, MüNro, and G-lover, JJ., concurred.

Motion dismissed.  