Henrietta King was informed against and convicted in the county of Ottawa for selling intoxicating liquor on the 17th day of October, 1923. She had an examination before the justice. It was shown by the man to whom the liquor was sold that the sale was made on the 17th day of October. Defendant moved to dismiss the case because no time had been shown. This motion was overruled. A motion was then made in the circuit court to quash the proceeding for this reason. This was likewise overruled. Upon the trial in the circuit court the same witness testified the same as he had in the examination, that the sale took place on the 17th day of October, without stating the year. Defendant again endeavored to have the case disposed of because no date had been shown, but this motion was overruled.
The conduct of the prosecuting attorney is inexplicable. After a motion to dismiss the proceeding before the justice had been made and after a motion to quash had been made before the circuit court, why the prosecutor did not make it certain by adding the year is quite difficult to understand. The gist of the offense with which defendant is charged is the unlawful sale. The date is not important, except to show that it was made within the statute of limitations. *Page 446 There is nothing in the record that we can find that shows that the sale was made in 1923, unless we indulge in presumptions, which we may not do in a criminal case.
"The evidence must show that the acts charged in the indictment were done within the period of limitations, for which purpose it is generally necessary that there should be positive testimony as to the year when the events occurred." 23 Cyc. p. 261.
See, also, 12 Cyc. p. 382.
For the failure of the prosecutor to show the year that the sale was made, the proceeding should be dismissed and the prisoner discharged.