Johnson v. State

• Decision Date: 21 July 1904
• Citation: 141 Ala. 7,37 So. 421
• Parties: JOHNSON v. STATE.
• Court: Alabama Supreme Court

37 So. 421

141 Ala. 7

JOHNSON v. STATE.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Gadsden; Jno. H. Disque, Judge.

Henry Johnson was convicted of murder in the first degree, and he appeals. Dismissed.

Goodhue & Blackwood, for appellant.

Massey Wilson, Atty. Gen., for the State.

HARALSON J.

The act to declare the powers and jurisdiction of the city court of Gadsden, provides that "there shall be two regular terms in each year, and may continue in session until the business thereof is disposed of. * * * Regular terms of said court shall be as follows: Beginning on the third Monday in January in each year, and continuing until the last Saturday in June and on the third Monday in September in each year, and continuing until the third Saturday in December." Acts 1900-01, p. 1291.

The defendant was tried on the 19th of December, 1903, which was the third Saturday in December. He did not, in the lower court, question the right of the court to try him on that day, and in this court contends that the word "until" employed in the statute, excluded the day on which he was tried, and, therefore, the proceedings were coram non judice and void. If the term of the court ended on Friday, and the defendant was tried on Saturday, after the term had ended, the fact that defendant did not object to being tried on that day, did not preclude him from raising this question in this court.

The well-settled rule is, that the use of the word "until," generally implies an intention to exclude the day to which it refers, unless the contrary appears from the context of the statute or instrument in which the word is used. 26 Am. & Eng. Ency. Law (1st Ed.) 9, and authorities there cited, note 1.

In Kendall v. Kingsley, 120 Mass. 95, it was said "It may be assumed, * * * that the preposition 'until,' like 'from' or 'between,' generally excludes the day to which it relates. Nichols v. Ramsel, 2 Madd. 280, Wicker v. Norris, Cas. t Hardw. 116; Bemis v. Leonard, 118 Mass. 502, 19 Am. Rep. 470; Atkins v. Boylsten Ins. Co., 5 Metc. 439, 39 Am. Dec. 692. But such general rules of construction must yield to the intention of the parties, apparent on the face of the whole instrument, as applied to the subject matter." Anderson's Law Dic. tit. "Until."

The charter of a bank was continued in force until the first day of January, 1850, and it was held that the word "until" was used in an exclusive sense, and that the charter expired on December 31, 1849. People v Walker, 17 N.Y. 502.

Under a statute providing that bids from all persons should be received "until" the first of July, 1849, it was held that the time for receiving bids terminated when that day began. Webster...