The indictment against the respondent charged him with being a common seller of intoxicating liquors, and contained what was intended to be a,n allegation of a former conviction of a violation of the same statute. To this indictment the respondent filed a general demurrer, which was overruled and the case comes here upon exception to such ruling.
It is not denied that the crime of being a common seller of intoxicating liquors is sufficiently set out in appropriate language and with all necessary allegations; the demurrer therefore was properly overruled. If the averment of a former conviction is 'insufficient, it would not affect the other allegations of the indictment which sufficiently set out the main crime. So much of the indictment as relates to the alleged former conviction might be stricken out and still the crime would be fully charged with all necessary particularity. It may, therefore, if insufficient for the purpose intended, be rejected as surplusage. State v. Mayberry, 48 Maine, 218; State v. Chartrand, 86 Maine, 547; State v. Dorr, 82 Maine, 341.
But the statute prescribes a greater penalty in the case of a second and every subsequent conviction, and it may not be improper *426to here discuss the question, especially as it is presented in a number of cases now before the court, intended to be raised, as to whether the greater or the lesser offense is charged in this indictment; or, in other words, whether the following is a sufficient allegation of a former conviction for another violation of the same statute; “and the jurors aforesaid, upon their oath aforesaid, further present that said James Bartley has been once before convicted as a common seller under the laws for the suppression of drinking houses and tippling shops in said County of Piscataquis.”
However deficient in certainty and in averment this may be, it is precisely the form prescribed by statute, R. S., c. 27, § 63, so that the question resolves itself into this, whether or not the legislature, in prescribing this form, has transcended its constitutional power.
It is well settled in this state that while the legislature may modify and simplify the forms in criminal proceedings, and may authorize the omission of allegations in indictments which do not serve any useful purpose, either by enabling the court to see without going out of the record, what crime has been committed, if the facts alleged are true, or of apprising the' accused of the precise crime with which he is charged, so as to enable him to meet it in his defense, it can not deprive a person accused of crime of such rights as are essential to his protection, and which have been guaranteed to him by the constitution of the state. One of the most important of these rights, is that the accusation against him shall be formally, fully and precisely set forth, so that he may know of what he is accused and be prepared to meet the exact charge against him. In State v. Learned, 47 Maine, 426, the question as to the extent of the power of the legislature in- this respect is fully discussed and the law clearly stated. See also State v. Mace, 76 Maine, 64.
By the adoption of this'form has the accused been deprived of his constitutional rights or not? We think he has been. It must be remembered that the allegation is a material one in charging the commission of the greater offense; — without it the accused could only be convicted and punished for the lesser offense. ' It is *427an elementary principle of pleading, both in criminal and civil proceedings, that every traversable material allegation must be laid with some certain time. Here neither the time nor the court nor the term of court of the alleged former conviction is stated. The allegation is material, it is traversable and raises an issue of fact to be determined by a jury if denied by the respondent. In such a case he should be apprised of the time when, as claimed, he had been convicted of another violation of the same statute. The objection is not merely technical nor fanciful. One important issue raised by this allegation is as to the identity of the accused with the person who had been previously convicted, in any case a prosecuting attorney might make a mistake upon this matter of identity; and the accused should be enabled, by an allegation of time, to prepare his defense by showing that he was not the person named in the record of the previous conviction. We think that in this respect the form provided by the legislature is so deficient as to deprive the accused of his constitutional right.
Such was the conclusion of the court in State v. Small, 64 N. H. 491. Under a provision of the statute that the record of a former conviction need not be set forth particularly in an indictment for a second offense and that it should be sufficient to allege briefly that the accused had been convicted of the violation of any of the provisions, of the chapter, the court said: “The judgment need not be set forth litei’ally, but he is entitled to a description that will enable him to find the records, to apply for the correction or reversal, and to make preparation for the trial of the question whether he is the convict. A construction less favorable to him would not be consistent with his constitutional rights. The averment giving him no information of the time, court or county in which the judgment was rendered is insufficient. See also State v. Adams, 64 N. H. 440.
In State v. Conwell, 80 Maine, 80, a former conviction was alleged as of the May Term of the Superior Court, “to wit, on the tenth day of August A, D. 1885.” The May Term of the Superior Court finally adjourned on June first, 1885. The averment was held insufficient.
*428In State v. Dorr, 82 Maine, 341, an averment of a prior conviction upon an impossible date was held an insufficient allegation. And in State v. Wentworth, 65 Maine, 234, it is said by the court in discussing the sufficiency of an allegation of a prior conviction : “ The time when the court before which, the chapter and section under which the conviction was had, are briefly set forth.”. All of these averments are wanting in the indictment in this case.
It is true that in State v. Gorham, 65 Maine, 270, an allegation of a prior conviction, which contained no averment as to time, although much preferable to the form adopted in this case in other respects, was held sufficient, but it is evident from the opinion that this particular objection was not urged in that case, the attack upon the indictment being based upon other, grounds.
The form adopted is deficient in other respects. The allegation is that the respondent has been once before convicted as a “common seller”, of what is not stated, nor is this lack of averment cured by reference to chapter and section of the statutes as in State v. Wentworth, supra. The qualification, “ under the laws for the suppression of drinking houses and tippling shops,” is too indefinite. We do not think that the allegation is sufficient to apprise the respondent that he is charged with the commission of the greater offense, because of a former conviction of another violation of the same statute.
As we have before said, the demurrer was properly overruled, but the indictment does not allege a former conviction.
Exceptions overruled.
Judgment for state for first offense.