
    Warren v. State.
    [66 South. 979.]
    Indictment and Information. Variance. Time of offense.
    
    Where, on a trial for crime, the evidence clearly shows that th& offense was committed after the finding of the indictment, a conviction cannot he sustained.
    Appeal from the circuit court of Wayne county.
    Hon. J. L. Buoklby, Judge.
    William Warren was convicted of grand larceny and appeals.
    The facts are-fully stated in the opinion of the court. - -
    
      Luther K. Saul, for appellant.
    ' Section 14-28 of the, Code of 1906, with its exceptions-to the common-law rule does not cure the error complained of in this case. The indictment does not allege the crime to have been committed at a subsequent date' and if it did, here is a crime committed, if committed at all, after the indictment was returned. Proof of a crime committed after the date laid in the indictment is incompetent. See Moses v. State, — Miss.— ; 56 So. 457.
    The crime must be alleged and proved to have been committed prior to the date of the indictment. Under-hill on Criminal Evidence (2 Ed.), section 23, citing Turner v. State, 89 Ga. 424, 15 S. E. 488'; Commonwealth v. Graves, 112 Mass* 282; State v. Hughes, 82 Mo. 86; Hardy v. State (Tex.), 44 S. W. 173.
    In all cases the state is bound to establish some time at which the offense was committed with reference to which all the essentials of the offense must be established. Such date must be shown to have been committed within the period of limitations, and before the finding of .the indictment. 22 Cyc. page 446, citing Minhinnett v. State, 106 Ga. 141, 23 S. E. 19; St. Joseph v. Dienger, 165 Mo. 95', 65 S. W. 223; Arcia v. State, 28 Tex. App. 198.
    I shall not discuss the other grounds alleged for a reversal of this case as I believe that the one discussed is amply sufficient to reverse, which I sincerely believe should be done.
    
      Ross A. Collins, Attorney-General for the state.
    The only point argued in the brief of appellant’s counsel and argued as the reason for reversal of this case, is that the proof shows the commission of the crime subsequent to the date alleged in the indictment. However, the weakness of his proposition is that he assumes as proven the facts upon which he predicates his argument.
    It is true that in the testimony of two of the witnesses, T.- A. Mills and Mrs. Euth Moore, it was stated that the theft occurred in April, 1909, while, the indictment alleged the theft on January 1, 1909. In this connection it is to be remembered tbat tbe trial of this case occurred some five years after tbe crime was committed, and while tbe said witnesses may have testified erroneously as to tbe year, they, together with all tbe other witnesses in tbe case, are of one accord as to all tbe essential details establishing tbe identity of tbe crime. T. A. Mills testified that it was in tbe month of April and that be went before tbe grand jury before said grand jury brought tbe indictment.
    From tbe testimony of Mrs. Ruth Moore it is most obvious that tbe identity of tbe crime to which she testified in point of time, place and object as well as tbe name of defendant is tbe same one alleged in tbe indictment. Witnesses Trigg for tbe state, Mrs. Warren and Truman Mills for tbe appellant, likewise testified beyond tbe least doubt that tbe identity of tbe crime is tbe same as alleged in tbe indictment and while they did not testify positively as to tbe year in which tbe crime was alleged to have been committed, they state definitely as to all tbe other elements of tbe crime.
    Tbe crime alleged in the indictment has been supported by ample proof and tbe identity of tbe crime is proven beyond cavil, inasmuch as all the essentials of it have been conclusively established. Tbe jury took into consideration tbe time intervening between tbe commission of tbe crime and the date of trial and reconciled tbe discrepancy in tbe dates testified to by reference to all of tbe details of tbe offense proven and admitted and they then found their verdict accordingly, and I submit that tbe indictment in all respects is wholly sustained by tbe proof and that tbe judgment of tbe court below should be affirmed.
   Reed, J.,

delivered tbe opinion of the court.

Tbe indictment charging appellant with stealing a horse was returned on January 9,1909. Tbe evidence for tbe state clearly and definitely showed that tbe ,Jiorse was stolen in April, 1900, some three months after the indictment was filed. We fail to find any evidence in the proof from which we can decide that the state’s witnesses made a mistake in their testimony fixing the date when the horse was taken in April, 1000. As the proof shows that the crime was committed on a date subsequent to the filing of the indictment, we cannot uphold the conviction of appellant.

Reversed cmd remanded.  