
    State of Maine vs. A. J. Small.
    Knox.
    Opinion June 23, 1888.
    
      Intoxicating liquor. Pleading. Evidence.
    
    When the offence of a common seller is set out with a continuando, time is material and the evidence must be confined to acts which happened within the days alleged.
    On exceptions.
    
      Indictment charging the respondent with being a common seller of intoxicating liquor between the 1st day of June, A. D. 1887, and the date of the indictment.
    At the trial the presiding justice allowed evidence to be introduced by the government tending to show that the defendant was a common seller before the first day of June, 1887, and instructed the jury that the time mentioned in the indictment was not material. To this ruling and instructions the defendant alleged exceptions.
    
      J. II. H. Heweli, county attorney, for the state.
    
      Robinson and Rowell, for the defendant.
   Virgin, J.

In setting out, in an indictment, an offence whicq consists of a single act, though an allegation of the time of its commission is necessary, still the evidence of such act is not confined to the time alleged, but may be of acts which took place at any time before the finding of the indictment and within the period allowed by the statute of limitations. Bac. Ab. Indict. G. 4; Com. v. Traverse, 11 Allen, 260.

When the offence consists of a series of acts, a day certain must be alleged, and the time is material, and no evidence of the commission, of the acts on any other day is admissible. Com. v. Elwell, 1 Gray, 462 ; Com. v. Gardner, 7 Gray, 494 ; Com. v. Sullivan, 5 Allen, 513. Such offences are frequently and properly set out with a continuando ; and when so set out, time is material, and evidence is confined to acts which happened within the days alleged. State v. Cofren, 48 Maine, 364-366 ; Com. v. Briggs, 11 Met. 573 ; Com. v. Chisholm, 103 Mass. 213; Com. v. Dunster, 145 Mass. 101; Com. v. Purdy, 5 N. E. Rep. 710. And an indictment containing such allegations may be supported by proof of the commission of the offence during any part of the period named. Com. v. Wood, 4 Gray, 11; Com. v. Connors, 116 Mass. 35.

Exceptions sustained.

Peters, O. J., Walton, Daneorth, Librey and Foster,. JJ., concurred.  