State v. Newsom, 47 N.C. 173, 2 Jones 173 (1855)

June 1855 · Supreme Court of North Carolina
47 N.C. 173, 2 Jones 173
STATE vs. NEWSOM & BRINDLE

STATE vs. NEWSOM & BRINDLE.

The State, on a trial for a misdemeanor, upon a question under the statute of limitations, is not restricted to the time stated in* the Indictriient, but is at liberty to go back two years previously to the finding of the bill.

This was an bstdiotment for fornication and adultery, tried before his Honor Judge Dice, at the Spring Term, 1855, oi\ Eorsyth Superior Court.

The defendants asked his Honor to charge the jury that unless they wore satisfied from the testimony in the case, that the defendants were guilty within the time stated in the bill of indictment, they were entitled to a verdict of not guilty.

His Honor refused so to .charge, but told the jury that they were at liberty to consider any acts that had been proved against the defendants within two years next before the finding of the bill. Defendants excepted to the charge.

Verdict against the defendants, and judgment. Defendants appealed.

Attorney General, for the State.

Miller and Gilmer, for the defendants.

Nash, O. J.

The court below could not charge the jury *174as required; they were not restricted in their inquiry to the time embraced in the indictment, bat were at liberty, as directed by his Honor, to take into consideration any acts of the defendants, charged in the bill and proved to have been committed within two years, next before the finding of the indictment or the legal presenting of the offence. At common law it is indispensable that the indictment should fix some certain day at which every material fact, constituting the crime, occurred. The authorities, however, fully show that it is sufficient to prove on the trial, that the offence was committed before the prosecution was commenced. The rule does not apply to cases where time enters into the offence. Time does not enter into the offence here charged, except that time which limits the commencement of the prosecution. Ilis Honor was perfectly correct in telling the jury that if they were satisfied, from evidence, that the defendants were guilty within two years before the finding of the bill of indictment, they should convict them. See Pettijohn v. Williams, ante 33.

Pee CukiaM. Judgment affirmed.