
    *The People against Peter Van Santvoord and Gilbert Oakley. 
    
    ALBANY,
    August, 1821,
    [Before Spencer, Ch. J., and. Van Ness, Yates, Platt and Woodworth, ' Justicea-1 '
    the time of committing an of-Í™°in¿ctment is> in general, wholly immaterial, and any proved m3"y . Though an the^timíf ^o found, that the toTe barred by the statute of limitations, this is no “judgment. practicaHomis of . removing an lnd1Ctment from the oyer to theíupíemo court, after conviction, where a question of law is reserved at the trial, and the convict is in notes’1" (i) ^’(c“ and (d) in connax‘on . oage Pnnc‘Pa*
    . At the general session in Saratoga county in May, 1821, the prisoners, Van Santvoord and Oakley, were jointly indicted for forgery. The indictment charged the for- , , . . , , ° gery to have been/committed more than three years previous to the findin^Ef the indictment; so that on the face of the indictment, the time limited for the prosecution for penal offences by the statute (sess. 24, ch. 183, s. 7, 1 R. L. 187,) appeared to have elapsed before the indictment found.
    At the oyer and terminer in Saratoga, on the'2d of June, 1821, (Woodworth, J. presiding,) the prisoners were sep- , , \ . ,J , . , 1 arately tried on their plea of not guilty, and convicted on this indictment. And the fact that the crime apeared by the indictment to be barred by the statute being mentioned to the court, they suspended the sentence with a view that the point might be presented to the supreme court.
    ’ A , . 1 nr TTT IT Accordingly Mr. Warren, the district attorney, made out and sealed a writ of certiorari, 
       to remove the record *from the oyer and terminer, and a writ pf habeas cor pora 
       directed to. the sheriff of Saratoga, both, returna ble on the first Monday of August (at August term) thereafter. These being allowed, Mr. Justice Woodworth made a return to the, writ of certiorari; and the sheriff having brought the prisoners into court upon the habeas corpora, 
      
    
    
      if. B. Davis, for the prisoners, now moved in arrest of" judgment. He said this is not an offence indictable- after three years from the time of its commission. The indictment, therefore, defeats itself. To be good, it must show an indictable crime'on its face. (5 East, 244.), It has, been often held, that although the- particular day is not material in an indictment, yet where the law makes time material to the offence the day must be laid within that time by the indictment. Thus, in The King v, Stevens & Agnew, (5 East, 244,) which was the case of an indictment for receiving presents under the statute, (33 Geo. 3, c. 52, s. 62,) while holding or exercising an office in-the East Indies, it was agreed, the indictment having recited that the defendants held their offices from such a time till the 29th of November, 1795, it must lay the offence on a day within the time recited. And Ld. Ellenborough, C. J. who delivered the opinion of the court, supposes, that, in an appeal of murder, it is necessary, where the stroke is laid on one day, and the death on another, today the latter day as within a year and a day of that on which the stroke is charged to have been given ; otherwise the crime is not-made. out. (5 East, 249.) In Baynham v. Matthews, (Fitz. 130,) it was taken for granted, that in a plea of usury, it should appear by the pleadings that the transaction was subsequent to, the statute of usury. Chitty, in his treatise on criminal law, in giving the requsites of an indictment, says, “"Where, the time for the prosecution is limited, as under 7 W. 3, ch. 3, which provides that no prosecution shall be had for certain treasons therein mentioned; unless the bill of indictment be found within three years after the crime was committed, the time, as averred in the indictment, should appear to be within the limit.” and he cites the authority in support of this position. (1 Chit. Cr. Law, 223, and note (r.)
    
    
      E. Cowen, contra.
    The general rule is, that the day when an offence is charged to have been committed is wholly immaterial. The rule applies as well to indictments as to declarations. This is admitted by Mr Chitty, the writer mainly relied-on to'sustain the present motion in' arrest. He shows at large that a day must'be stated m the indictment ; but that may be' entirely disregarded in evidence , arid he cites authorities fully establishing this as a general rule.' (1 *Chit. Cr. Law, 217 tó 227.) In general you are confined neither to the day nor the year. (id. 224.) Indeed, it will be seen by examining the pages of that author to which I have'referred, that the rules as to allegation and proof of time are in all respects the same, both in declarations, arid indictments. Now it is abundantly settled as to civil actions, that though the time be laid in the declaration so" as to show the action barred by the statute, this cannot- be taken advantage of by error, motion in arrest, or demurrer. And' the reason assigned in several of the cases is, that the "statute of limitations contains exceptions in favor of infants, prisoners, persons abroad, &c. The defendant must plead the statute, therefore, in order that the plaintiff .may reply, and excuse, if he can, the lateness of his action. ¡ (Ball. on -Lim. 209 to 316, and the cases there cited.)
    The passage cited from 1 Chitty, 223, is a mere dictum of the writer. No case is given by him for tying down, the indictment to a day within the three years, even where it is for treason under the statute of William. Neither of the authorities referred to as supporting his general posi tion, relate to that statute; and it has been repeatedly held that the day laid for overt acts of treason is entirely immaterial, since, as well as before that act. (Colledge’s case, 3 St. Tr. 393, 4.  Townley’s case,. 9 S't. Tr. 550, 551 ; and Ld.- Balmerino’s case, in a. note to the last page. The two last cases also are in Forst. Rep. 7, 9.) In the two last cases it was held that you need not follow the day ’"n the indictment as to *the overt acts, where the proceeding is under the statute of William, In the first of the two cases, the point was holden too clear for debate; and in the last the 12 judges conferred, and were unanimous that the day was immaterial, provided the treason was proved to have been committed before the finding of the bill.
    But admitting the dictum of Chitty to give the true doctrine on the statute of 7 William 3, c. 3, s. 5, 6, it does not apply to our statute of limitation of crimes, (sess. 24, ch. 183, s. 7, 1 R. L. 187.) The statute of William is without exceptions, that in all cases indictments of certain treasons must be found within three years. Our statute limits indictment to that time; but this excepts non-residents, and those not usually resident within this state ; and even if the day be material, the court will intend after verdict, and on motion in arrest, that the defendants were shown at the trial to be within the exception. (Murdock v. Herndon’s executors, 4 Hen. & Munf. 200, 203.)
    But it cannot be necessary to resort to any such intendment The day being immaterial,- it is sufficient to intend that a time within the three years was proved at the trial, (and this was the fact,) and to reject the day as wholly immaterial; and so in the case of Lee v. Clarke, (2 East, 333.) That was an action for the penalty on the game laws, where it was necessary to prove the offence to have been committed within six lunar months of the time when the action was brought. The declaration laid the offence as within six calendar months of that time, to wit, on the 21st of January, 1801. Upon this ground, among others, the defendant brought error. Lord Ellenborough put it upon the. evidence. He said if the proof had not brought the offence within the six lunar months, the plaintiff must have been nonsuited. Lawrence, J. said the time having elapsed, would have been evidence for the defendant, (id. 336.) Lord Ellenborough finally said the time was immaterial ; and the court could not presume that the fact was not proved to have happened within the time prescribed by law. (id. 338.) It is said in Lofft’s edition of Gilbert’s Ev. 870, 871, that “ if a felony is *alleged at such a day, and found to be done, it doth not follow that it was done at the day; for whether it were or not, the verdict and deter-. mination of law ought to be perfectly the same; so that the time when the felony was done is not determined and adjusted ; nor as to that the record is conclusive.”
    
      
      
         This cause was decided at August term, 1821.
    
    
      
      i) This writ was as follows:
      The people of the state of New York, to our Justice and Judges assigned to
      
        hold our court of oyer and terminer as goal delivery, in and for our ' county of Saratoga, and to every of them, Greeting:
      We, being willing, for certain' reasons, that all and singular indictments, records and convietions, of whatsoever felonies whereof Peter Tan Santvoord and Gilbert Oakley are- indicted and convicted before you, be determined' before our justices of our supreme court of judicature, and not elsewhere, do command you, and every of you, that you, or one of you, do send, under your seals, or the seal of one- of you, before our said justices on the first. Monday of August next, at the capítol in the city of Albany, all and singular the said indictments, records and convictions, with all things touching the same, by whatsoever name the said Peter Tan Santvoord and Gilbert Oakley are called in the same, together with this writ, that we may sfiirther cause to be done therein what of right, and according to- law, we shall see fit to be done. Witness Ambrose spencer,. Esq., Chief Justice, at the city of New York, the.nineteenth day of May, in. the year of our Lord one thousand eight hundred and twenty-one,.
      Eairlie, Bloodgood & Breese, Clerks,
      
        Warren, Hist. Atiy.
    
    
      
      . This, writ, was as-foUqws :
      The People of the state of New York, to qur. Sheriff of our county of Sara-toga, - Greeting!
      We command you, that you have before our Justices of pur supreme court, of judicature* on the first Monday of August next, at the capitel in the city of Albany, the bodies of Peter Tan Santvoord. and Gilbert- Oakley, being committed and detained in our prison under your custody, as, is said, together with the day and cause of the taking apd detaining of the- said Peter Tan Santvoord and Gilbert Oakley# by whatever names the said Peter Tan Santvoord and Gilbert Oakley may he called in the’ same, to undergo and receive all and singular such things as our sjjd court shall then and there consider of them in that behalf, and that you have then there this writ. Witness Ambrose Spencer, Esq., Chief Justice, at the city of New York, the nineteenth day of May# in the year of our Lord one thousaand eight hundred and twenty-one.
      Eairlie, Bloodgood & Breese, Clerks.
      
        Warren, Hist. Atty.
    
    
      
      <Zj That, this is the correct practice in all the numerous cases which occur of suspending sentence on account of doubt or difficulty at the oyer and ter« miner or general sessions, vid. 1 Chit. Cr. Law, 373, 386, 389; and 4 Chit. Cr. 1. 251, &c, for form, of certiorari and return by one of the justices; with 1 Saund. 308, note (2). After the conviction is, removed^ and* the point of law decided, the court may go on and give sentence, or if they are not fully informed, they may direct a procedendo to, the court below. (Regina v. Porter, 1 Salk. 149. 2 Ld. Ray. 937, S. C. by title of Regina v. Potter et alios. 6 Mod. 17. S. C. by the title of The Queen v. Bothell, Holt’s Rep. S. C. by the, title ef The Queen u. Bethel.) "Or the court below may suspend, judgment, and ask the adyice of the supreme court, who will give it;; and then the court below can, proceed accordingly, without the form of a certiorari, See. {¡Ex parte Barker, 7 Cowen, 143.) The district attorney may remove the indictment by certiorari as a matter of right. (People v, Vermilyea 7 Cowen, 140, 141.)
    
    
      
       But see State v. Beckwith, 1 Stew. 318. Shelton v. State, 1 Stew. & Port. 208, State v. Roach, 1 Hayw. 260.
    
    
      
       This was a case in 1681, of high treason, before the statute of William: “ Colledge. My Lord, I think Turberville and Douglass swear as to the 10th of March in Oxon. I desire it may be proved I was in Oxford the 10th of March. Mr. Just. Jones. You yourself came down the middle of March. Ld. C. J. I do remember that they said the 10th of March. Colledge. Did not the indictment say so ? Mr. Atty. Gen. It is only in the indictment. Ld. C. J. As to the time mentioned in the indictment, it is not material. That is the constant rule in trials upon indictments; as if a horse be laid to be stole the 10th, if it be proved the prisoner stole it another day, it will be sufficient. The time is not material. The question is, whether the indictment be true in substance. Mr. Colledge, my brothers will tell you the law is so. Mr. Just. Levinz. Though it is laid the 10th of March, yet if it be proved the 1st or 20th, before or after, it is all one. So the thing be proved, they are not bound to a day.”
    
   Curia, per Spencer, Ch. J.

We incline to think that the day laid in the indictment must be regarded as wholly immaterial for all purposes ; that it is to be intended that the offence proved at the trial was within the three years ; and that for this reason the motion must be denied. The only authority opposed to this view of the case, is what Mr.. Chitty says, in his treatise on criminal law in regard to indictments for treason under the statute of 7 William 3, ch. 3. Without questioning this, we are satisfied it cannot apply to our statute limiting the time within which criminal prosecutions are to be commenced. As remarked by the counsel for the people, the statute of William is absolute and without exception. No indictment can be found after the three years against any offender. Whereas, if an offender be not usually resident in this state, our statute does not run in his favor. Non constat, on this motion, that the prisoners were within the exception. ~ut that, on its appearing in evidence that the crime was ~erpetrated more than three years previous to the indictnent being found, and on this being objected, as it might e on not guilty, the prosecution then answered, by proving

The motion in arrest must be denied.

The prisoners were sentenced to hard labor in the state prison for the term of 14 years.  