Page:Federal Reporter, 1st Series, Volume 2.djvu/675

 OT8 ÏEDEEAL REPORTER. �and not continuing, if the îndictment charges that the de- fendant did the criminal act on a day which it mentions, and, in general terms, on divers other days, without speoify- ing the others, the latter clause, being in itselr an insujjicient allegation of time, may be rejected us surplusago. Tlius, where the averment was that the defendants, to use the words of the report, on 'such a day, et diversis aliis diebus et vicibus tam antea quam postea, keep a common gaming house,' this was held to be a good allegation of keeping the house on the one day mentioned. True, in this particular case, more days might have been laid, but the time is so uncertain as to ail but one day that only forty shillings are recoverable. Where an indicfcment sets out that the defendant sold liquors, without license, on a day which it mentioned, and at divers times between this day and the finding of the bill, it is suf- ficient, because the inadequate allegations of other days may be rejected as surplusage. But, where a count in an indictment alleged that the defendant committed the crime on the twen- tieth day of September, in a year specified, and on divers other days and times between that day and the ninth day of December, in a subsequent year specified, it was held to bo insufficient. Here there were at least two distinct days ade- quately set out, and, whatever might be said of the rest, cer- tainly the allegations of neither of these could be rejected aa Burplusage." �Here we have a test upon this question. And, certainly, it cannot be said that the offence which is eharged in the In- dictment under consideration is in its nature continuing. Thô offence is one which may be committed to-day and as dis- tinctly committed to-morrow, and the act of to-morrow may bave no connection with that of to-day ; and as this count does not merely describe one offence, and by inadequate alle- gation state in part another, so that the latter allegation may be treated as surplusage, but does charge in adequate terms distinct offenoes committed on distinct days, I must, within the principles stated, hold this count bad for duplicity. �The motion to quash as to the second and third counts will be overruled, and as to the first will be sustained. ����