People v. Hill

JAMES, J.

Defendant wasconvicted upon an indictment returned by the grand jury of Inyo County for the offense of selling and furnishing alcoholic liquor to another within the boundaries of certain “no license” territory. This offense is a misdemeanor of which the superior court had jurisdiction. He appeals from the judgment and from an order denying a motion for a new trial.

The first point made by appellant is that the evidence was insufficient to sustain the verdict of the jury. In view of the fact that there is shown by the record to have been some affirmative evidence establishing all of the elements necessary to prove the charge as made against defendant, this court is not permitted to enter upon a review of the testimony for the purpose of forming any conclusion as to which side the weight of evidence might lean. As to all questions of fact it was the province of the jury to make conclusions upon them and with the determination so made we cannot here interfere.

The indictment, in fixing the time of the commission of the offense, contained the allegation that the crime charged had been committed “on or about the 19th day of May, A. D. 1912.” The law under which defendant was prosecuted became operative as to that portion of Inyo County in which the offense was alleged to have been committed, on November 6, 1911. The indictment was filed on the twenty-fifth day of May, 1912. It is the contention of defendant that the prosecution, under an allegation phrased in the words “on or about,” might address the proof to any date prior to the filing of the indictment and within the one year period of the statute of limitations; and that, as to a portion of this period there was no offense known to the law of the kind charged against defendant, the indictment should have contained a more definite statement as to the time of the commission of the alleged offense. In order to sustain this argument we would be required to presume that under the allegation contained in the indictment the offense may have been committed prior to the time that the prohibitive measure affecting the sale and furnishing of liquors went into effect. Section 955 of the Penal Code, in treating of the statement to be contained in

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an indictment or information respecting the time of the commission of the alleged offense, provides as follows: “The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.” We do not think that the matter of the time when the offense was committed was in this case a material ingredient of the offense, as that term is used in the statute. The prosecution might have introduced evidence showing the commission of the offense at any time within the period subsequent to the date when the law creating the offense became effective. We cannot presume that the pleader in drawing his indictment intended to charge the crime as having been committed at a time when the acts described constituted no offense under the law. The case of