The Commonwealth vs. Alfred, 4 Dana 496

Chief Justice Robertson delivered the Opinion of the Court. Granville C. Alfred having been presented for retailing to Jacob Lung, a half pint of whiskey, without license, the Circuit Court acquitted him on the ground that, as the presentment charged that the retailing was on the 12th of February, 1835, proof that it was about that time, was insufficient. That decision was, in our judgment, erronébus. The general rule is that, except where time 11 enters into the character of the offence,” proof of the precise time speeb lied in an indictment or presentment is not indispensable to conviction.

And, as the d.ay on which the whiskey was sold to Lung is not material to the character or ex* istence of the déliclwn charged, and was essential for the purpose only of showing that the presentment was made within the limitation prescribed by law, we can perceive no reason for excepting this case from the general rule.

The offence charged is sufficiently identified by the proof of the sale of a half pint of whiskey to Jacob Lung, at thaplace specified in the presentment, about the 12th of February, 1835; and if Alfred should, after conviction, be presented again for the same act, he would, as we must presume; have no difficulty in identifying the two charges—and barring the latter upon a plea of autrefois convict. Wherefore, as the presentment was made within a year after the retailing, according to any reasonable

interpretation of the proof of its having been about the 12th of February, 1835—it seems to us, that the evidence was sufficient to authorize a judgment against the accused. And therefore, the judgment rendered in his favor must be reversed, and the case be remanded.