The question here is whether the facts stated in the affidavit which sought to charge the offense, constituted a public offense; the alleged infirmity being, that the time of the offense was laid in two different years, one of which was without the statute of limitations.
So much of the affidavit (omitting the caption) as will present the alleged error is: "Ralph Plummer being duly sworn upon his oath says that Clarence Hunt on or about the 27th day of Oct. A.D. nineteen hundred 1923, at said county, . . . did then and there," etc. Appellant moved to quash the affidavit for the cause that the facts stated do not constitute a public offense. (§ 2227 Burns 1926, Acts 1905, ch. 169, § 194 p. 626).
An indictment, in criminal procedure, as a complaint which alleges a civil right, will be construed most strongly against him who pleads it; and a doubt as to an essential fact, 1. necessary to state the crime, caused by an infirmity of repugnancy will not be held a burden for the accused to carry. The rule of the common law concerning who must bear the burden of an infirmity of pleading, if it appertains to the state, is not abrogated by the statute which had to do with pleading the time of the commission of an offense. (§§ 2204 and 2225 Burns 1926.) Walker v. State (1864), 23 Ind. 61; Pond,Admr., v. Sweetser (1882), 85 Ind. 144, 150; Littell v.State (1893), 133 Ind. 577, 582, 33 N.E. 417; Payne v.Neuval (1908), 155 Cal. 46, 50, 99 P. 476. The commission of the offense is laid in two different years, one of which is alleged by written words, the *Page 553 other by Arabic numerals. It has long been the general rule, which pertains to bills and notes, that where the amount stated in figures, differs from the amount in words in the body of the instrument, the written words control. Story, Promissory Notes § 21; Bradshaw v. Bradbury (1876), 64 Mo. 334, 336.
A rule, which has relation to criminal law and procedure, and concerns a criminal pleading, the purpose of which is to challenge the life or liberty of a citizen, ought not to be 2. less strict than a rule of pleading in civil law and procedure. Speculation upon this comparison is futile, under the decisions of the courts of appeal, which have held generally that the same, or substantially the same, but no greater, certainty is required in criminal as in civil pleadings.Dukes v. State (1858), 11 Ind. 557, 562; State v. Ensley (1912), 177 Ind. 483, 501, Ann. Cas. 1914D 1306, 97 N.E. 113.
Applying the above rule of pleading, the written words which state the year in which the offense was committed, and which laid the crime outside of the statute of limitations, control.
Approaching the question from another angle, it may be premised as a matter of law that the allegations necessary to the common intent, as expressed in the language of the indictment, 3-5. though stated with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case (§ 2224, cl. 5, Burns 1926), must be so certain, that the accused may know therefrom the distinct charge against him. Respublica v. Newell (1802), 3 Yeates (Pa.) 407, 416, 2 Am. Dec. 381; and that he may plead a conviction or acquittal thereunder in bar of another action upon the same offense. Williams v. State (1919), 188 Ind. 283, 123 N.E. 209, and that he may know what he is called upon to answer.Mayhew v. State (1920), 189 Ind. 545, 553, 128 N.E. 599. By the *Page 554 common law, an indictment is a written accusation (IV Blackstone, Comm. 302); and by statute in England (4 Geo. II, c. 26 and 6 Geo. II, c. 14) all indictments must be in words at length. Neither could any figures be allowed in indictments, but all numbers must be expressed in words at length. 2 Hale 170, 146; Chitty, Crim. Law (4th Am. Ed.) 170 (*176); Finch v. State (1843), 6 Blackf. (Ind.) 533; See Berrian v. State (1849), 22 N.J. Law 9. Although by statute (Acts 1905 p. 625, § 192, § 2225 Burns 1926), no affidavit shall be deemed invalid and quashed for the "defect." "Third. That dates and numbers are represented by figures," this section of the enactment is not so broad that it covers the whole subject-matter of the question, whereby it may be implied that the common-law rule is abrogated, as in the case at bar, where the date is expressed by both writing and Arabic numerals, and thereby the numerals shall stand and prevail over the written words. Unless the date of the commission of the offense, as alleged by Arabic numerals, prevails over the date in writing, as a matter of law, or vice versa, the accused may not know with certainty what he is called upon to answer. Story is in accord with Marius in concluding that where there is a repugnancy between the written words of a number and the number expressed in figures, that, founded upon common sense and experience, a person is more apt to commit error in writing a figure than in writing a word. Story, Promissory Notes (6th ed.) 24, citing Marius, Bills 33, 34. The court is of the opinion that where the date of the commission of the offense, averred in an indictment, is expressed by both written words and Arabic numerals, and one expression of the date is repugnant to the other, the one in written words should prevail. Applied to the case at bar, the time of the commission of the offense is without the statute of limitations. *Page 555
If the rule concerning repugnancy in relation to bills is inapplicable to a repugnancy in an indictment, yet by virtue of the statute (§ 2225 Burns 1926), if the date of the 6. commission of the offense was represented by figures alone, the indictment would be good as against the attack by motion to quash because of insufficient facts to state the time of the commission of the offense. Hampton v. State (1856),8 Ind. 336. A lenient construction of the statute, in an indictment where the date of the offense is alleged by both written words and figures, where there is no repugnancy, is that the date, represented by figures, stands upon an equal footing with the date alleged in written words. Applying this reasoning to this affidavit, where the date of the commission of the offense alleged in written words, is not in harmony with the allegation of the time by figures, but is repugnant, if the figures are to stand upon an equal footing with the written words, one offsets the other, one neutralizes the other, the two are in a balance; then, because of such repugnance, there is no assertion of the time, even necessary to bring the alleged crime within the period of limitations. Keller v. State (1875), 51 Ind. 111, 118;State v. Price (1922), 90 W. Va. 365; King v. Stevens Agnew (1804), 5 East's Report (Eng.) 244; Harwell v. State (1901), 65 S.W. (Texas) 520; Combs v. Commonwealth (1905),119 Ky. 836, 840, 84 S.W. 753. 2 Hawkins, Pleas of the Crown (8th Eng. Ed.) ch. 25, § 78.
It is unnecessary to decide in this case whether or not the time of the commission of the offense is a material and essential element of the offense, even to show the act is not barred 7. by limitation of time, and the point is not decided. Disregarding the opinion of the court that one allegation neutralizes and offsets the other, and therefore there is no allegation as to time, it seems to be a well-settled rule that the precise *Page 556 time of the commission of the offense need not be alleged in an indictment, if the precise time is not a material and essential element of the offense; but the alleged offense must be shown by the indictment to have been committed within the time limited to legally begin the action. § 2052 Burns 1926, Acts 1905 p. 584;State v. Noland (1867), 29 Ind. 212; State v. Windell (1878), 60 Ind. 300; Hutchinson v. State (1878), 62 Ind. 556;Fowler v. State (1882), 85 Ind. 538, 541; Murphy v. State (1886), 106 Ind. 96, 5 N.E. 767; State v. Hendricks (1802),1 N.C. 369; King v. Stevens, supra; State v. Price, supra; 1 Wharton, Crim. Proc. (10th ed.) § 179, p. 227; Clark, Crim. Proc. (2d ed.) § 95, p. 280, 282; 1 Chitty, Crim. Law (4th Am. Ed.) 223. 31 C.J. 681, 684. It is self-evident that the necessary fact of the allegation of the time of the commission of the offense was lacking in the indictment. Wherefore, the court finds that appellant's assigned error based upon the court's ruling in overruling his motion to quash the affidavit, ought to be sustained. The cause is remanded, and the trial court is ordered to sustain defendant's motion to quash the affidavit.
It would be a useless thing to discuss and decide the other alleged errors, Willits v. Ridgway (1857), 9 Ind. 267, for the reason that another indictment or affidavit cannot be filed within the period of limitation.
Judgment reversed.
Gemmill, J., dissents.
Martin, J., dissents with an opinion.