dissenting:
I respectfully dissent. The majority asserts that the appellant seeks to have us adopt a per se rule that an indictment covering a two-year period is unconstitutionally overbroad. My reading and analysis of the appellant’s position is that he does not seek a per se rule but, rather, asserts that under the circumstances of this case, the two-year period of time is over-broad in that it created a situation which prejudiced his defense and denied him a fair and impartial trial.
At common law, the specific date of an alleged offense had to be set forth in the indictment. State v. Brown, 24 S.C. 224 (1886). In Brown, the indictment charged as follows: “That Andrew Brown, on the_day of March, in the year of our Lord one thousand eight hundred and eighty-five, at the hour of_, in the night of the same day ...” In Brown, the Court determined that failure to alleged specific time and place was fatal.
The common aw has been altered by statute. S.C. Code Ann. § 17-19-20 states, in relevant part:
Every indictment shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the crime...
The general test for determining the sufficiency of an indictment has been stated as follows:
An indictment is adequate if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and acquittal or conviction to be placed in bar to any subsequent conviction.
State v. Crenshaw, 274 S.C. 475, 266 S.E. (2d) 61 (1980). Additionally, this Court has stated that “the true test of the sufficiency of an indictment is not whether it could have been more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently *88apprises the defendant of what he must be prepared to meet.” State v. Ham, 259 S.C. 118, 191 S.E. (2d) 13, 17 (1972).
In State v. Adams, 277 S.C. 115, 283 S.E. (2d) 582, 587 (1981), this Court determined that “the indictment sufficiency tests . . . must be viewed with a practical eye; all the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached.”1 (Emphasis added.)
The facts and circumstances revealed by the record before this Court leads to the inescapable conclusion that the appellant was prejudiced by the defect in his indictment. First, the only evidence identifying the appellant as the perpetrator of the crime was the victim’s vacillatory testimony. Second, there was testimony that the victim changed her statement and admitted that John Wade, Jr., did not sexually assault her. Third, evidence was presented at trial that the victim had been sexually molested by her father and grandfather. Finally, the absence of reasonably certain dates from the two-year period in the indictment prejudiced the appellant by forcing him to present a blanket denial for lack of a specific time or times for which he could advance a defense.
Further, the indictment alleged that “at divers time during 1984 through 1985” the appellant committed the sexual battery. At trial, the prosecuting witness testified that the offense occurred only once. Under the circumstances of this case, I feel that the appellant was prejudiced by the failure of his indictment to state the offense with sufficient certainty and particularity to enable him to defend himself against the charges.
I would hold that in this case, the two-year period covered in the indictment was constitutionally overbroad.
Other courts, using a case by case analysis, have articulated factors which should be considered in determining whether or not an indictment is overbroad in its time parameters. State In Interest of K.A.W., 104 N.J. 112, 515 A. (2d) 1217 (1986); People v. Morris, 61 N.Y. (2d) 290, 473 N.Y.S. (2d) 769, 461 N.E. (2d) 1256 (1984). Without such a case by case analysis, I believe the majority is endorsing, carte blanche, a two-year indictment period as being permissible. This sets a dangerous precedent.