McGinn v. State

65 N.W. 46, 46 Neb. 427, 1895 Neb. LEXIS 506

• Court: Nebraska Supreme Court
• Decided: November 19, 1895
• Docket: No. 6854
• Status: Published

Opinion

Post, J.

The plaintiff in error Barney McGinn was at the September, 1893, term of the district court for Douglas county adjudged guilty of the crime of murder in the first degree,, which judgment has been removed into this court for-review by means of a petition in error, to which further reference will hereafter be made. The prisoner is by the-information charged with feloniously and maliciously wounding, with intent to kill, one Edward McKenna on the 29th day of July, 1893, from which he, the said Mc-Kenna, died two days later, on the 31st day of July. It is unnecessary to examine at length the evidence adduced in support of the allegations of the information. It is-sufficient for the purpose of this investigation that the dates of the assault and the death of the deceased were proved as charged by the state. The jury, at the close of the trial, returned a general verdict of murder in the first degree without assessing the penalty therefor, to which exception was taken both by way of motion for a new trial and in arrest of judgment, and which suggests the first questions presented for our consideration.

Prior to the act approved April 8, 1893, entitled “An act to amend section No. three (3) of the Criminal Code,” etc. (Session Laws, 1893, p. 385, ch. 44), the only penalty for murder in the first degree was death by hanging; but by section 1 of the act above mentioned section 3 of the Criminal Code was so amended as to read thus: “And upon conviction thereof shall suffer death or shall be imprisoned in the penitentiary during life, in the discretion of the jury.” By section 2 of said act the original section is repealed with a saving clause in the following language: “Provided, however, That such repeal shall not be construed to apply to any offenses committed prior to the taking effect of this act, nor shall the same affect any convictions or prosecutions held under'said original section.” (Session Laws, 1893, p. 386, sec. 2, ch. 44.) The contention of counsel* for the prisoner is that the act of 1893 took effect previous to the date charged in the information ; hence the district court should have required the-jury to fix the penalty, and that it accordingly erred in receiving the verdict over their objections. The constitutional provision which bears upon the subject is found in section 24 of article 3, as follows: “No act shall take effect until three calendar months after the adjournment of the session at which it passed, unless in case of emergency, to be expressed in the preamble or body of the act, the leg- • islature shall, by a vote of two-thirds of all the members-elected to each house, otherwise direct.” The twenty-third, session of the legislature adjourned on the day the act in-question was approved, to-wit, April 8, 1893; therefore-the precise question presented is, when did the constitutional period of three calendar months after the adjournment of that session terminate? The term “month” at-common law, whether employed in statutes or contracts,, unless a different meaning was apparent from the context,, was held to mean a lunar month of twenty-eight days, except, in ecclesiastical affairs, and as applicable to commercial paper. (Chase’s Blackstone, Commentaries, 141*; Bishop,, Contracts, sec. 1339; Migotti v. Colvill, 4 L. R., C. P. D. [Eng.], 233; Lacon v. Hooper, 6 T. R. [Eng.], 224; Churchill v. Merchants Bank, 19 Pick. [Mass.], 532; Guaranty Trust & Safe Deposit Co. v. Green Cove S. & M. R. Co., 139 U. S. 137.) In this country many of the earlier ■cases follow the rule of the common law. (Vide Ellis’ Case, 8 N. J. Law, 286; Loring v. Halling, 15 Johns. [N. Y.], 19; Stackhouse v. Halsey, 3 Johns. Ch. [N. Y.], 74; Redmond v. Glover, Dud. [Ga.], 107.) Later cases have, as a rule, construed the word “month,” when it does not appear •■to have been used in a different sense, to mean a calendar month. (Glore v. Hare, 4 Neb., 132; Brown v. Williams, 34 Neb., 376, and cases cited.) In order to avoid the confusion arising from conflicting constructions of the term, ■thirty-five states and territories have by legislative enactment declared the term “ month,” when used without ■qualification, to mean a calendar month; and in England the common law rule was abolished by statute in 1850. [13 and 14 Vic., c. 21.)

It is said by counsel for the prisoner, referring to the facts of this case, that “ the authorities, without exception, ■support our contention that three calendar months should -be computed as commencing to run on the 9th day of April and terminating on the 8th day of July,” and as that proposition presents the issue to be determined, we will proceed to examine some of the cases cited as bearing upon •the subject. In Glore v. Hare, supra, it was held that an appeal taken on the 22d day of August from a judgment rendered February 21 is not within the six months prescribed by the act governing appeals to this court. In Brown v. Williams, supra, a note- executed on the 2d day •of January was held within the exception contained in section 44 (Compiled Statutes, ch. 6) of the assignment law, being a debt created within nine calendar months previous to a general assignment made on the 2d day of October following. In Snyder v. Warren, 2 Cow. [N. Y.], 518, fifteen calendar months were computed from August 15, 1822, to November 15, 1823. In McGuire v. Ulrich, 2 Abb. Pr. [N. Y.], 28, the statute required one month’s notice to quit before suit brought. The notice was given April 18, and it was held that a calendar month had intervened before the commencement of the action, to-wit, May 25. In Guaranty Trust & Safe Deposit Co. v. Green Cove S. & M. R. Co., supra, the first publication of notice was made August 9, the answer day named being December 1, following. After computing the time at 114 days, the court say the time is “ more than four lunar months, but eight days less than four calendar months.”

We now come to a class of cases having a more direct bearing upon the question at issue. In Commonwealth v. Maxwell, 3 Casey [Pa.], 444, the statute provided that in case of vacancy.in the office of judge of common pleas, a successor should be chosen “at the first general election which shall happen more than three calendar months after the vacancy shall occur.” The presiding judge died July 15, 1856, and the general election for that year occurred October 14. It was held that the statutory period had not intervened, and that the respondent, who was chosen at the election held on the day last mentioned, was not entitled to the office. In Minard v. Burtis, 83 Wis., 267, we observe this language: “ It is also said that the notice was not given one calendar month before the action was commenced ; that, having been given April 4, it would not be complete until June 1. We cannot adopt this view. If given the proper number of days before action brought, as contained in the calendar month in which it was given, as in this case, it was sufficient.” The leading case of Lester v. Garland, 15 Ves. Ch. [Eng.], 248, arose under the.will of Sir John Lester, providing that the testator’s sister, Sarah Pointer, should within six calendar months after his death give security that she would not at any time intermarry with A, or that in case she did so inter■marry, that she would within six calendar months thereafter pay certain bequests therein made. The testator died •January 12 and the security given July 12 was held to satisfy the requirements of the will, Grant, M. R., saying: “The question is whether the day of Sir John Lester’s death is to be included in the six months or to be excluded. If the day is included she did not, if it is excluded she did, give the required security before the end of the last day of the six months; and therefore did comply sufficiently with the conditions.” Hardy v. Ryle, 9 Barn. & C. [Eng.], 603, was an action against a justice of the peace for illegally detaining the plaintiff after the expiration •of his term of imprisonment. The defendant relied upon a statute of limitations which required the action to be brought 41 within six calendar months after the act committed.” The court, after a review of the authorities, say: “The question * * * depends upon this: whether the 14th day of December, the last day of the plaintiff’s imprisonment, is to be included or excluded. * * •* If it is to be included, the action was not commenced in time; if it is to be excluded, it was.” South Stratfordshire Tramway Co. v. Sickness & Accident Assurance Association, 1 Q. B. Div., 1891 [Eng.], 402, was an action on a policy of insurance for twelve calendar months, from November 24,1888. It is said that November 25,1887, was the first and November 24, 1888, the last day covered by the policy. And to the same effect are Young v. Higgon, 6 M. & W. [Eng.], 49; Watson v. Pears, 2 Campb. [Eng.], 294; Ratcliffe v. Bartholomew, 1 Q,. B. Div., 1892 [Eng.], 161; Gross v. Fowler, 21 Cal., 393; Savings & Loan Society v. Thompson, 32 Cal., 347. But perhaps the most satisfactory of reported cases is Migotti v. Colvill, 4 L. R., C. P. D. [Eng.], '233, which was an action against the governor of the Mid-dlesex House of Correction for false imprisonment. It appears that the plaintiff was on the 31st day of October sentenced to imprisonment for the period of one calendar month, and to the further term of fourteen days, to commence on the expiration of the first sentence. The decision turned upon the question when the first sentence terminated, and Lord Denman, after an exhaustive examination of the subject, concludes as follows; “On the whole, I am of opinion that a sentence of imprisonment for one calen-dar month passed on any given day of any given month is to be held to begin to run from the first moment of that day and to expire upon arriving at the first moment of the corresponding day in the succeeding month. If there be no such corresponding day by reason of the succeeding month not having so many days as in the preceding month, then, by analogy to the law established in the case of bills cf exchange, I think the calendar month should be held to have expired at the last moment of its last day.” The ether judges, Cotton, Bramwell, and Brett, concur in separate opinions,the latter using the following language: “I am of opinion that the term a ‘calendar month’ is a legal and technical term, and that we are bound to interpret its legal and technical meaning. The meaning of the phrase is that in computing time by calendar months the time must be reckoned by looking at the calendar and not by counting days, and that one calendar month’s imprisonment is to be calculated from the day of imprisonment to the day numerically corresponding to that day in the following month, less one.” It is true the precise question was not presented in every case cited, as the same result would in some instances have been reached by extending the period to the end of the month; but they are nevertheless instructive as tending to sustain the assertion of counsel that in no case, except in Minard v. Burtis, supra, was the rule applied by the district court contended for. The natural and necessary deduction from the authorities above cited is that the term “calendar month,” as used in the constitution, had, prior to the adoption of that instrument in 1875, received a definite interpretation, and is to be computed not by counting days but by looking at the calendar, and terminates with the day numerically corresponding to-the day of its commencement, less one, in the following month ; and such is evidently the sense in which it is employed in the constitution.

The authorities are not, as will be observed, harmonious upon the question whether the first day — in this instance, the day of the adjournment of the legislature — is to be included in the prescribed period. That question is, however, not an open one in this state. Indeed, it is clear that section 895 of the Code of Civil Procedure, providing that “the time within which an act is to be done as herein provided shall be computed by excluding the first day and including the last,” was intended to establish a uniform rule, applicable to the construction of statutes as well as to matters of practice. (Monell v. Terwilliger, 8 Neb., 360; McGavock v. Pollack, 13 Neb., 535; Spencer v. Haug, 45 Minn., 231.) It follows that the period of three calendar months after the adjournment of the legislature of 1893 terminated at midnight of the 8th day of July of that year. It follows, too, that the act amendatory of the Criminal Code relating to the penalty for murder in the first degree was the law of the state on the 29th day of July and should have governed in the trial of this cause. The attorney general, however, relies upon a practical construction of the provision under consideration adverse to the view above stated. That contention has for its basis the opinion of Hon. George H. Hastings, attorney general, in response to an inquiry addressed to him by the secretary of state on the 29th day of April, 1891. We have examined with care the opinion referred to, but are unable to accept the conclusion of the learned author, for reasons already appearing. A practical exposition of a constitutional provision by the officers charged with its execution is, as said by us in State v. Holcomb, 46 Neb., 88, entitled to great weight, and will, in - case of doubt or ambiguityt especially when long acquiesced in, generally be adopted by the courts; but that rule can have no application to the case at bar. There is not alone an absence of evidence tending to prove that the construction of the attorney general was acquiesced in by the executive officers or the people of the state, but it is a fact, verified by the records of this court and of which we are required to take notice, that the question has, ever since the date of the opinion mentioned, been the subject of judicial controversy.

Of the many questions presented during the able and instructive arguments with which we have been favored in this case it is necessary to notice two only in addition to those already examined, and which are both included in the proposition that it is our duty to discharge the plaintiff in error instead of remanding the cause for trial de novo. It is asserted by counsel thát the plaintiff has-been once in jeopardy within the meaning of the bill of rights, and that the trial then had is a bar to further prosecution for the crime charged. If the question were an open one to be determined by the application of fundamental principles, the argument of counsel could not be lightly disregarded. Indeed, we can conceive of no course of reasoning which does not lead logically to the conclusion contended for. As said by Mr. Bishop (1 Bishop, Criminal Law, 1044): “The court is the power that brings the jeopárdy upon him [the prisoner], and when the constitution declares that this power shall not put him in jeopardy twice, it is mockery to say that it may bring him into as many jeopardies as it will, provided it violates the law each time.” But the author, at sections 998 and 999 of the same volume, admits the contrary to be the firmly established rule. To attempt an examination of the cases holding that the accused, in a criminal prosecution, by procuring a reversal of the judgment of conviction, waives his right 'to object to a second trial on the ground that he has been once put in jeopardy, would be a work of supererogation. It is sufficient that the question has been definitely determined by this court in Bohanan v. State, 18 Neb., 57. (See, also, United States v. Harman, 68 Fed. Rep., 472.)

The other contention, that the prisoner should be discharged, is based upon the following facts: On the 29th day of December, 1893, the district court, on overruling the motion for a new trial, pronounced its judgment by which the prisoner was to be executed on the 6th day of April following, and in the meantime remain in solitary confinement in the jail of Douglas county. On .the next day, to-wit, December 30, he was again brought into court and an order made setting aside the judgment previously entered and a second sentence pronounced by which April 13, 1894, was named as the day of execution. The second sentence, like the first, provided that the prisoner should, from the date thereof until the day of his execution, be confined in the jail of Douglas county. It is argued that the second sentence is not irregular merely, but absolutely void, for the reason that the punishment prescribed by the first had been suffered in part by the prisoner, and the power of the court over the subject thereby exhausted. In the brief of counsel for the prisoner his position is thus tersely stated: “The solitary confinement imposed upon the prisoner was as much a part of his sentence as was his execution. The only authority that the sheriff had to imprison him during that day and until called into court the following day was the sentence pronounced on the 29th of December. All previous commitments had expired. Their purpose had been served. The judgment and sentence of the court were the only authority on which the imprisonment could be legally justified from the 29th to the 30th of December, and the imprisonment of plaintiff in error under that sentence from the 29th to the 30th of December was the infliction of a part of the punishment covered by the sentence and a part, too, that the court had legal authority to impose.” That argument, although plausible, is not convincing. The first sentence was, it is conceded, irregular, the time intervening between the date thereof and the day of execution being less than one hundred days, as prescribed by law (Criminal Code, sec. 503); but having reached the conclusion that the verdict was also irregular and should have been set aside on the motion of the prisoner, the power of the district court to correct its judgments in prosecutions for felonies will not now be examined.

This court in Re Fuller, 34 Ñeb., 581, held that the term of imprisonment of one sentenced to the penitentiary runs from the date of sentence and not from the date of his delivery to the warden; but that was a construction of section 518 of the Criminal Code, and not involving the question now under consideration. It is by section 547 provided, in substance, that the death penalty shall be inflicted in the immediate vicinity of the jail in an inclosure to be prepared under the direction of the sheriff. Although the confinement of the prisoner from the time of sentence until the day of his execution is a practice which has prevailed from time immemorial as a necessary incident to the judgment, it is, strictly speaking, no part thereof, and the power of the court in that regard does not rest upon any positive provision of statute. The precise question appears to have been seldom raised and the cases cited cannot be said to sustain the proposition contended for. In People v. Meservey, 76 Mich., 223, as well as People v. Kelly, 79 Mich., 320, the sentence was imprisonment in the penitentiary, and in accordance with the rule adopted by this court in Fuller’s case, supra, was held to have commenced on the day it was imposed. In Re Tyson, 13 Colo., 482, the statute of 1889 provided that all persons convicted of crimes punishable by death should be delivered to the warden of the penitentiary and by him kept in solitary confinement until the day of execution. The statute in force at the time of the homicide, like ours, provided merely that "every person convicted of murder in the first degree should suffer death. Tyson having been convicted of murder in the first degree, was delivered to the warden under the act of 1889, whereupon he sought his discharge by means of a writ of habeas corpus, alleging that the provision for solitary confinement was in the nature of an ex post facto law. In disposing of that contention the court say: “Aside from this, the defendant is imprisoned for the purpose only that he may be produced at the time set for his.execution, the confinement being no part of the punishment, but simply an incident connected therewith, referable to penal administration as its primary object.” The same statute was before the supreme court of the United States in Medley, Petitioner, 134 U. S., 160, where it was held, but without controverting the proposition that the imprisonment is not a part of the sentence proper, that the provision therein for solitary confinement was in the nature of an ex post facto law as to crimes previously committed. We are satisfied with the reasoning of the Colorado court and do not hesitate to adopt the conclusion reached by it, so far as applicable to the facts of the case before us.

Although it has been our endeavor to examine the merits of the question presented, we must not be understood as conceding it to be an open one at this time. We have, on the other hand, no reason to doubt the soundness of the practice long prevailing in this state by which one committed to the penitentiary is, by jrrocuring a reversal of the judgment of conviction, considered to have waived his right to insist that the partial execution of the sentence is a bar to further prosecution; and such, while not expressly decided, logically follows from the rule asserted in Bohanan v. State. The judgment is reversed and the cause remanded for further proceedings by the district- court.

Reversed.