¶1 concurring:
¶2 I disagree with the conclusion of the majority concerning the sufficiency of the second count of the indictment. I agree with the majority opinion that in misdemeanor cases it is not necessary that the indictment state a specific date upon which the offense charged was committed, provided that it does allege that it took place within one year previous to the finding of the indictment. That is the holding in State v. Davis, 68 W. Va. 184, 69 S. E. 644, and State v. Farley, 78 W. Va. 471, 89 S. E. 738. Further information concerning the time of the occurrence could be obtained by the accused by requesting a bill of' particulars. Time is certainly a material allegation in misdemeanor indictments and if its allegation, instead of being general, is unnecessarily exact, the pleader in a criminal case is required to make the proof conform to the allegations'. Beale’s Criminal Pleading and Practice, Paragraph 112. I do not agree that where the indictment expressly alleges that the offense took place on a named date subsequent to the finding of the indictment, that the specific allegation of an impossible occurrence can be cured by a general allegation of time, certainly .not, as here, by an allegation that the offense took place “within one year from the finding of this indictment” (italics mine). It will be noted that the actual wording of the general allegation of time does not conflict with the specific allegation, since “from” includes both prospective and retrospective happenings.
¶3 I do not believe that there is conflict in the principles enunciated in the Davis and Farley cases and the holding in State v. Price, 90 W. Va. 365, 110 S. E. 819. In the Price case the offense was alleged to have been committed “on *325 the-day of_, 1917, and within one year next preceding the finding of this indictment.” The indictment was returned on April 20, 1920. This Court held that the allegation of the specific date was controlling and that since the offense charged was a misdemeanor the prosecution was barred because in spite of the general allegation that the offense occurred within one year next preceding the finding of the indictment, the specific allegation that it occurred in the year 1917 showed conclusively that the one year limitation had run. In the Davis and Farley cases there was no specific date alleged and this1 Court simply held that the allegation of “within one year” before or prior to the indictment was sufficient. In the Price case there was a specific date alleged and this Court said that the general allegation of “within one year next preceding the finding of this indictment” did not overcome the specific allegation, thereby following a well settled rule of pleading. It will not do to say that because it was not necessary to allege the actual or specific date upon which a misdemeanor was’ committed, that then if the date is alleged, the allegation may be treated as surplusage and need not be supported by proof. The reasoning of this Court in the case of State v. Runyon, 100 W. Va. 647, 131 S. E. 466, which involves facts which gave rise to exactly the same principle as here, in my opinion, is ignored in the majority opinion. The Runyon case involved murder and the majority opinion states that a different rule prevails with respect to misdemeanors. The Runyon opinion draws no such distinction, as does not its first syllabus point, quoted in the majority opinion, as follows:
“An indictment is fatally defective which charges the commission of an offense subsequent to the date upon which the indictment is found.”
¶4 We have an indictment before us now.
¶5 Code, 62-2-10, provides that no indictment shall be deemed invalid for “… omitting to state, or stating imperfectly,. the time at which the offense was committed, when time is not of the essence of the offense … Here *326 the majority opinion states expressly that time is of the essence of the offense. With such statement I do not agree for the reason that the statute of limitations is no part of the definition of the crime charged. It applies only to the remedy. However, the inconsistency of the position.of the majority lies in stating that the statute enacted for the very purpose of singling out the instances where minor mistakes' in an indictment do not make it bad, does not apply, but, nevertheless holding that the admittedly bad allegation of time in the indictment before the court, although relating to the essence of the offense, is to be overlooked.
¶6 I am authorized to say that Judge Lovins agrees with this concurrence.