Allen v. State

²⁶⁶ Urner, J., delivered the opinion of the Court. The appellant moved in the Court below that an indictment against him for bastardy be quashed because, after charging that the fornication was committed on the first day of December, 1914, it averred that the illegitimate child thus begotten was born alive on the first day of December, 1915. The indictment was found on October 14th, 1915, and it is said to be fatally defective in alleging that the child was born on a date which had not then arrived, and which would occur twelve months after the time of conception, and beyond the longest possible period of pregnancy. Upon this appeal the only question presented is whether the objection just mentioned is well founded.

This question is entirely free of difficulty. While under the bastardy law of Maryland the offense is not consummated, and the indictment can not be found until the birth of the child (Code, Art. 12; O'Brien v. State, 126 Md. 277; Sheay v. State, 74 Md. 52 ), yet the time of the birth is not of the essense of the offense and need not be proved as alleged. Neff v. State, 57 Md. 385 . In the last cited case the defendant in a bastardy proceeding pleaded that the prosecution was not commenced within a year from the date which the indictment mentioned as the time of the commission of the offense.

A demurrer to the plea was sustained, and on appeal this Court approved of the ruling and said the plea was insufficient “because in cases of this kind time is not of the essence of the offense, and the State was not bound to prove that the child was bom on the precise day charged in the indictment. The offense was consummated by the birth of the