Dec. 1830.

#### The State v. Sam, a slave,

From Rowan.

An averment of the. time When an offence was committed is unnecessary, unless the time is a constituent part of the offence.

Such an averment is frequently made, where offences committed after a certain specified day are made criminal ; or where the statute increases the punishment. But it seems that it is now in no case necessary.

The prisoner was indicted, under the act of 1823, (Bcv. c. 1229) as follows:

“ THE jurors, &c. present, that Sam, a person of colour, &c '‘on, &c with force and arms, in, 8.C. in and upon-the body cj “ one L. S. a white female, in the peace, &c. violently and felo- “ niottsly did make an assault, with intent to commit a rape upon “ the body of the said L. S, then atul there did beat, &c. ag-ainst “ the form of the statute.”

After a conviction, the Counsel for the prisoner filed an affidavit, and upon the facts disclosed therein, moved for a new trial, upon the ground of surprize, which was refused by his Honor Judge Strange.

A motion in arrest of judgment was then made, because the indictment did not charge the offence to have been committed since the passage of the act of 1823.

This motion was overruled, and judgment of death being pronounced, the prisoner appealed.

Nash, for tiie prisoner.

The Mtorney-General, contra.

Ruffin, Judge.

When the time of doing an act constitutes its guilr, the indictment must expressly aver it, and so describe the time, as to bring the case within the words of the statute, if the offence be one created by statute.’ As where it is made unlawful to do certain things between such a day and such another day of the year. *568The time not only enters into the offence, but also into the description of it in the act; and therefore ought also to enter into the description in the indictment.

Going on that reason, there are cases which require the same particularity in indictments framed on statutes, which make acts done after a specified day criminal, or increase the punishment. But this was always confined to recent statutes. And a respectable writer, Mr. Chitty, (Cr. Law 234) supposes that, though usual, it is now in no case necessary. I-hould, indeed, think, that in such a case the conclusion,contraformanstatuti, did sufficiently aver, that the fact was done after the day specified in the act itself, and that the verdict so affirmed. For, except in cases of description, the time stated need not be proved; and unless the evidence showed the commission of the offence was subsequent to the day limited, the party would be entitled to an acquittal. The verdict of guilty, therefore, affirms, not only that the fact has been done, but also that if was done, «o as to be criminal within the Statute ; that is to say, after its passage, or the day specified in it. And that such an averment does not enter into the description of the oiTerne is. clear from this : if it did, if must appear alike in all indictments, drawn on any statute, ancient or modern, thus specifying a day. llut all the books state, that it need not in the case of an ancient one.

But clearly, the rule never went farther than to cm-brace cases arising ori statutes, which do in themselves designate a particular day after their passage, after which the act prohibited shall he an offence. It never did extend to statutes making the act criminal immediately after the passage of the statute, or the general period at which all statutes go into operation. The time does not make a part of the offence, as described in the statute, and is material only so far as it shows the fact was perpetrated after the statute was in force — which is neces-*569sadly inferred from the verdict, and the averment that it was against the statute. Of ilii.s last kind, is the act of Assembly on which this indictment is drawn.

We do not give any opinion upon die motion for a new trial, because it is founded altogether upon surprize, and of that the Court below is exclusively the judge. It is a matter of discretion;, with which this Court cannot interfere.

Per Curiam. — Let the judgmeut of the Court below he affirmed.