3 Del. 557 (Del.Oyer.Ter. 1840), State v. Clarke

Citation3 Del. 557
Opinion JudgeBayard, Chief Justice.
Party NameTHE STATE v. FITHIAN J. CLARKE.
AttorneyMr. Clayton, for the defendant,
CourtCourt of Oyer and Terminer of Delaware

Page 557

3 Del. 557 (Del.Oyer.Ter. 1840)

THE STATE

v.

FITHIAN J. CLARKE.

Court of Oyer and Terminer of Delaware.

October Term, 1840

A person is of full age the day before the twenty-first anniversary of his birth day.

The defendant was presented by the grand jury for illegal voting at the late inspector's election. The presentment set forth these facts, to wit:-That the defendant was born on the 7th of October, A. D., 1819, and voted at the election held on the 6th of October, 1840, upon age.

In his behalf a motion was now made to quash the presentment, on the ground that it appeared from the face of it that the defendant was of full age at the time he voted, and was, therefore, not guilty. It was proved that he stated the facts to the judges of the election, a majority of whom decided that he had a right to vote.

Mr. Clayton, for the defendant, cited 1 Blac. Com. 497.

" Full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's birth. If he is born on the first of January, he is of age to do any legal act on the morning of the last day of December, though he may not have lived twenty-one years by nearly forty-eight hours: the reason assigned is, that in law there is no fraction of a day; and if the birth were on the first second of one day, and the act on the last second of the other, then the twenty-one years would be complete; and in law it is the same thing whether a thing is done upon one moment of the day or on another." He stated that this law was read to the judges of the election, and he had never heard it controverted by any lawyer; yet one of the judges of the election had opposed the vote, and now followed up his opposition by presenting the voter to the grand jury. He should like to know by what legal advice the grand jury had made the presentment.

Mr. Bates, for himself, disavowed having ever given an opinion against the legality of this vote.

The Attorney-general did not doubt that the law was as cited from Blackstone, and would not resist the application to quash the presentment. He supposed that the grand jury had stated the facts on the face of the presentment, in order that the question might be brought before the court. They had not consulted him on the matter.

By the Court

Bayard, Chief Justice.

Many persons suppose that the expression in...

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