On petition for rehearing.
Per Curiam.A petition for rehearing has been filed by the plaintiff in error by which and the brief in support thereof it is again insisted that the information is insufficient to sustain the conviction, for the reason that an impossible date was alleged as the time when the offense was committed. This contention has reference to the statement in the information of the year in which the offense was committed, viz.: “19013.” How the year came to he thus stated is explained in the former opinion. Repeating in substance what was there said, it appears that in preparing the information the prosecuting attorney used a printed form in which the figures “190” were printed in the place for inserting the year, said form having been one no doubt printed and used prior to the year 1910. In filling the blanks left in the form for the date and figures “13” used to indicate the year were inserted in the space left for that purpose following the figures “190,” thus making it read literally “19013.” It was conceded upon the argument that throughout the proceedings in the district court, including the trial, this date was read as 1913, and the indictment was read as charging the commission of the offense on or about the 13th day of August, A. D. 1913.
In support of the contention that the information charges no offense, because it charges the crime to have been committed upon an impossible date, we are referred to a case which was cited by counsel on the original hearing, viz.: Terrell v. State, 165 Ind. 443, 75 N. W. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 A. & E. Ann. Cas. *143851, wherein an indictment was held invalid which charged the commission of the crime on the 12th day of July, in-the year 18903. Although this case was not cited in the former opinion, we had not lost sight of it, but concluded not to follow it if in point. There are, however, some features which clearly distinguished that case- from the case at bar. In the first place a motion had been made to quash the indictment and that motion had been overruled. In this case no objection to the information was made in the trial court prior to verdict. Again, it was sought in that case to bring the original indictment to the attention of the appellate court for the purpose of showing the exact manner in which the date was stated; the opinion stating that the attorney general says: “The court will observe that the copy of the indictment in the record shows the figures 8 and 9 without any space between them. To get at the real cause of this alleged error, it is necessary to examine the original indictment, where the trouble concerning the statement of the date will readily be observed.” But the court held that the copy of the 'indictment as it appeared in the record imported absolute verity, and nothing dehors the record could be resorted to for the purpose of contradicting it. In the case before us the original information is a part of the record. It is not here by copy. Further, it also appears by the record in this case that the defendant below, plaintiff in error here, was first proceeded against by complaint before a justice of the peace and arrested upon a warrant issued by him, who thereupon gave the defendant a preliminary hearing, and finding that the alleged crime of murder had been committed by the defendant, it was ordered that he be held to answer the charge before the district court and he was committed to jail until discharged by due course of law. The complaint filed with the justice by the prosecuting attorney clearly states the date of the commission of the crime as the “13th day of August, 1913.” The warrant upon which the defendant was arrested charged the commission of the crime on the same date, and *144the justice’s transcript filed as a part of the record shows that the complaint charged the defendant White with having committed the crime on the 13th day of August, 1913, and that the said magistrate found that the offense charged had been committed by the defendant White “on or about the 13th day of August, 1913, in the county aforesaid.” And it was proven on the trial without objection, as stated in the former opinion, that the time of the homicide -was August 13, 1913.
In a later case decided by the Supreme Court of Indiana, where there had been no motion to quash the indictment, it was held that a motion in arrest was properly overruled where the indictment alleged the offense to have been committed “on or about December 14, 19012.” (Boos v. State, 181 Ind. 562, 105 N. E. 117.) The court said: “As alleged, the date is impossible of an act past, but we cannot avoid the fact that an offense which is charged to have been committed was committed prior to the charge being made, and could not in fact have been in the future, or 19012. The statute (Burns 1914, Sec. 2063) provides, among other things, that no indictment shall be set aside or questioned, nor shall the trial, judgment, or other proceeding be stayed, or arrested, for any surplusage or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged. The charge that appellant did then and there unlawfully and feloniously sell and barter, and give away one glass of beer, etc., an act in the past tense, is clearly repugnant to the charge that it was done in December, 19012, if it is not to be treated as a clerical error, for both of which there is authority. (State v. White (1891), 129 Ind. 153, 28 N. E. 425; State v. Patterson (1888), 116 Ind. 45, 10 N. E. 289, 18 N. E. 270; Trout v. State (1886), 107 Ind. 578, 8 N. E. 618.) Again, by statute, the time at which an offense is committed is not material where the time is not of the essence of the offense, or where the time is imperfectly stated on a motion in arrest. (Citing cases.) The offense charged is of a past *145transaction, and is that of unlawful sale to a minor, and the specific person charged is appellant. The allegation as to time is .both surplusage and repugnant to the allegation of a fact in the past, and we are required to view the matter in a common sense .manner, and to view the indictment as a whole. (Citing cases.) We are bound to presume on this motion that it was shown by the evidence, that the offense was committed at some time prior to the return of the indictment within the period of limitation, and this rule is in consonance with reason and adjudicated cases. (Citing cases.) It is not suggested, nor can we perceive how the allegation as to time could have prejudiced appellant’s rights in the least, and we are by statute required to disregard technical errors, or defects, or exceptions to any decision or action of the court below, which does not, in the opinion of the court, prejudice a defendant’s substantial rights. * * * Time is not of the essence of the offense here, and a public offense is completely charged without reference to the time stated, and the latter is surplusage, and also repugnant to the other charges in the indictment. Our conclusions are not in conflict with Terrell v. State, supra, and the cases there cited, in which the question arose on motion to quash, or when restricted to motions in arrest of judgment, but we are constrained to take the view that a defendant cannot risk the chance of an adverse verdict which could only be found on evidence of the commission of a public offense, well charged, except as to time, within the period of limitation, and then raise a question which goes neither to jurisdiction or the lack of a public offense, and could not possibly prejudice any substantial right, and that it should be decreed a personal right, which he may waive, and does waive, by so doing.”
From the facts in the case at bar, above alluded to, it is perfectly clear that the defendant was not misled or prejudiced upon his trial by the alleged error in charging the date of the commission of the offense. We are not to be understood as holding that no indictment will be defective *146or invalid for charging the commission of a crime upon an impossible date. We do not think that our conclusion announced in the former opinion, and to which we feel constrained to adhere, is in conflict with the general line of authorities upon that question, for most of the cases where the question is considered and an indictment held invalid are clearly distinguishable from the case here. But we cannot agree-that the statement of the year as found in this information is sufficient to invalidate it. We remain of the opinion that it may be regarded as surplusage or as a statement of the time imperfectly within the meaning of Section 6165 (Comp. Stat. 1910), which declares: “No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected : * * * for omitting to state the time at which the offense was committed, in any case where the time is not of the essence of the offense; nor for stating the time imperfectly ; * * * nor for any surplusage or repugnant allegation where there is sufficient matter alleged to indicate the crime or person charged; * * * nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” It would hardly be contended that anyone would read this information and understand it otherwise than as intended to charge the commission of the offense in the year 1913, notwithstanding that the figure “o'’ was not erased or that the figure “1“ was not typewritten over it instead of immediately following it. But if the court must be so insensible to the common understanding of men and read the statement of the year in this information as 190T3, their we are clearly of the opinion that in that respect the information is no more objectionable than if the time of the commission c-f the alleged offense had been entirely omitted. Indeed we think that is the effect of stating the year as 19013, a date beyond the practical comprehension of any person living today, so that the imormation may property be considered as failing to state the year, and, therefore, omitting to state *147the time of the commission of the offense, and thus bringing the case within the provisions of Section 6165 as to such an omission.
It seems to be now contended that time is of the essence of the offense charged in this case. But we are not convinced by the argument of counsel upon that proposition. It is further contended that by the decision in this case holding the information to be valid by applying the statute aforesaid .defendant has been denied due process of law guaranteed by the fourteenth amendment to the 'Constitution of the United States. It is argued in support of that contention that the information is insufficient to comply with the “due process of law” clause of said constitution and that Section 6165 of our statutes, which we have applied in considering the information, is violative of such “due process of law” clause and is, therefore, unconstitutional. But we do not think any constitutional right of the accused is infringed by the statute, nor has any authority been cited holding such a statute to be unconstitutional. Statutes of that kind, we think, have generally been upheld. (22 Cyc. 285-286; Comm. v. Snell, 189 Mass. 12, 75 N. E. 75, 3 L. R. A. (N. S.) 1019.) The defective statement of the date is a defect of form only, or a defect merely in the manner of charging the offense, where time is not of the essence of the offense, which may properly be objected to by motion to quash. (Ledbetter v. U. S. 18 Sup. Ct. 774; 42 L. Ed. 1162; 170 U. S. 606; U. S. v. Howard, 132 Fed. 325.) The statute provides that a motion to quash may be made in all cases where there is a defect apparent upon the face of the record, including defects in form of the'indictment or information, or in the manner in which the offense is charged. (Comp. Stat. 1910, Sec. 6186.) It further provides that the accused may demur when the facts stated in the indictment or information do not constitute an offense punishable b}^ the laws of this state, or when intent is not alleged, when proof of it is necessary to make out the offense charged. (Id., Sec. 6188.) And that the accused *148shall be taken to have waived all defects which may be excepted to by motion to quash, by demurring to an indictment or information, or pleading in bar, or not guilty. (Id., Sec. 6190.)
In Ledbetter v. U. S., supra, the Supreme Court of the United States say: “Good pleading undoubtedly requires an allegation that the’offense was committed on a particular day, month and year, but it does not necessarily follow that the omission to state a particular day is fatal upon a motion in arrest of judgment. Neither is it necessary to prove that the offense was committed upon the day alleged, unless a particular day be made material by the statute creating the offense. Ordinarily, proof of any day- before the finding of the indictment, and within the statute of limitations, will be sufficient.” And an indictment was held sufficient upon motion in arrest of judgment which alleged the time as “on the.day of April, A. D. 1896.” A rehearing will be denied. Rehearing denied. "