
    State against G. S.
    indictment must set forth the day, month and year, and in cases of burglary the hour when the of-fence was committed ; and though another day may be shewn in evidence on trial, yet it must be a day 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 insufficient.
    INDICTMENT for stealing one bushel of wheat in the chaff, on the second day of March, Anno Do-mini one thousand eight.
    
    Verdict guilty.
    In the copy delivered to the prisoner the year was rectified to one thousand eight hundred, and the defect ivas not noticed during the trial.
    Defendant now moved in arrest of judgment, that tire verdict might be set aside, and he go without day:
    Because there is no date of the year set forth in the indictment in which the offence is alleged to have been committed, and if any, that the same is repugnant and impossible,
    
      
      Amos Marsh, in support of the motion.
    Though the date of the day, month and year in which a crime is alleged to have been committed in an indictment be not material in evidence, it is yet of importance ias it respects the records of the Court.
    It is also material, as it respects the statute of limitations.
    On the first point we observe, that the Court will preserve their records from all inconsistencies, gross inconsistencies at the least.
    If the Court should sanction this indictment, and proceed to sentence the prisoner, how would the record appear?
    The prisoner may be offered as a witness in some foreign Court. To do away his competency a copy of the record may be produced; and it would appear that the Supreme Court of Vermont had convicted a man of an offence alleged in the indictment to have been committed before the Norman conquest.
    By the common law it has ever been considered as material to set forth in an indictment the day, month and year, and even the hour when the time of day is necessary to ascertain the nature of the offence. liatvkins' Pleas of the Crown, vol. 2. p. 325. 334, 335. Hale's P. C. vol. 2. p. 177. Com. Dig. vol. 4. p. 393.
    If the indictment lay the offence on an impossible day, or on a day that makes the indictment repugnant to itself, it is insufficient. Plawk. P. C. c. 25. s. 77.
    In support of the second point we observe, that section 3. of the limitation act limits the prosecution for theft to sis years after the commission of the of-fence, and not afterwards; and that no dispute might avise respecting dates, section 5. provides, that the clerk shall minute on the indictment under his official signature, the true day, month and year in which the same is exhibited in Court.
    The language of the Legislature is plain. Look within the body of the indictment for the precise time in which the offence is alleged to have been committed. Inspect the indorsement for the clerk’s minute of the time of the exhibition of the indictment in Court. Compare the several dates. If they differ more than six years in case of larceny, then the indictment is insufficient
    State Attorney. For the government we contend, that the day, month and year is sufficiently set forth in the indictment. The second day of March, Anna Domini one thousand eight, must be considered to intend the second day of March one thousand eight hundred.
    
    The expression in the indictment carries this idea so naturally and forcibly to the comprehension of all unprejudiced minds, that it is observable, that during the whole course of the trial, this supposed defect was not noticed. The Petit Jury considered it to mean the year eighteen hundred when the indictment was read to them in their charge. The prisoner himself so understood it when the indictment was read to him on his arraignment, and it was left to the critical acumen of the learned and ingenious counsel to discover and apply a meaning to it pregnant with absurdity.
    In the construction of indictments as Well as statutes, they are to be so construed as to render them consistent, if it can be done without violence to the wording of them. If the indictment xvas originally defective in this part, we submit to the Court if it is not one of those minor defects cured by the verdict.
    But' we shall contend that it is $ot defective. An indictment which sets forth the crime to have been committed at a time before or after the precise day of the actual commission of the offence, is sufficient. Com. Dig. vol. 4. p. 393.
    AH the authorities say the time is immaterial, and that the true question is, is the allegation sufficient?
    If the time set forth does not express the year 1800, yet it expresses a time past, and not a time future, which we concede would be an impossible time.
    It is said the timé set forth in the indictment is that from which the limitation is to be computed, put in opposition with the clerk’s minute of the exhibition of it in Court.
    We consider the date of the clerk’s minute to be one point of computation; the other is not the allegation of the time of the commission of the offence set forth in the indictment, but the actual time shewn in evidence. The whole current of the practice of the Court has been to decide on testimony offered in cri- , minal trials on the point whether within or beyond the statute of limitations in the nature of demurrer to such evidence.
    Reverse this practice. Suppose a person charged with the crime of theft, and the indictment should set forth the offence to have been committed infra, sex annos, and the Court held the respondent to the day alleged, and it should appear by plenary proof that the offence was actually committed twenty years before the time allegated in the indictment, must the defendant be estopped from sheltering himself by the statute of limitations ?
    
      Marsh. Mr, Attorney seems himself to doubt whether one thousand eight can be understood to intend eighteen hundred. He therefore submits to the consideration of the Court, whether this defect is not cured by the verdict.
    We believe that the doctrine does not apply to criminal process. In the systematical writers, under the head of what defects may be cured by verdict, all the cases are of a civil nature.
    But it is objected, that if the time alleged in the indictment is relied upon to compute the term of the statute limitation, a person might in a supposed case be excluded from the privilege of it, though the time of the actual commission of the offence would have brought him within the statute of limitations; but because the person charged may avail himself of the time set forth in the indictment to ground his bar in limitation upon, non constat that when the actual time of the commission of the offence is shewn in evidence, he may not avail himself of the privilege secured to him by the statute of limitations by parol demurrer to such evidence on trial.
    The truth is, the prisoner has a right to many indulgences, and that in favour of innocence; for the law views every man innocent until final judgment be passed against him; and a well ordered government never delights in conviction.
    
      
      W. C. Harrington, State Attorney.
    
      Amos Marsh, for defendant.
   The Chief Judge

delivered the opinion of the Court.

The Court consider the indictment so radically defective, that no judgment of conviction can be rendered upon it. .

Every sufficient indictment must set forth the day, month and year, and in cases of burglary the hour when the offence was committed; and though another day may be shewn in evidence on trial, yet it must be a day 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 insufficient.

Judgment arrested, and the prisoner discharged.  