McGinn v. State

• Decision Date: 19 November 1895
• Docket Number: 6854
• Citation: 65 N.W. 46,46 Neb. 427
• Parties: BARNEY MCGINN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

65 N.W. 46

46 Neb. 427

BARNEY MCGINN v. STATE OF NEBRASKA

No. 6854

Supreme Court of Nebraska

November 19, 1895

ERROR to the district court for Douglas county. Tried below before SCOTT, J.

REVERSED.

Mahoney Minahan & Smyth and Estelle & Hoeppner, for plaintiff in error:

If the plaintiff in error is guilty of murder as charged in the information, the crime was committed July 29, 1893, and he should have been tried under the laws then in force. By chapter 44, Session Laws, 1893, the jury, in finding a conviction of murder in the first degree, must fix the penalty and say by their verdict whether the defendant shall suffer death or imprisonment for life. This statute was approved April 8, 1893, and the legislature adjourned the same day. The court, in refusing to permit the jury to fix the penalty, committed an error. The law formerly in force prescribed the death penalty as the only punishment for murder in the first degree, and a verdict thereunder finding the accused guilty is illegal and will not support a sentence, where the alleged crime was committed after the new law went into effect. Under the constitutional provision that no act shall take effect until three calendar months after the adjournment of the legislature, the act requiring the jury to fix the penalty for murder in the first degree took effect July 9, 1893, before the alleged crime had been committed. (Constitution, sec. 24, art. 3; Session Laws 1893, ch. 44; Cooley, Constitutional Limitations [6th ed.] 187; Glore v. Hare, 4 Neb. 131; Migotti v Colvill, 4 L. R., C. P. D. [Eng.], 233; Lacon v. Hooper, 6 T. R. [Eng.], 224; Bishop, Contracts, sec. 1339; Ellis' Case, 8 N.J.L. 286; Loring v. Halling, 15 Johns. [N. Y.], 119; Stackhouse v. Halsey, 3 Johns. Ch. [N. Y.], 74; Redmond v. Glover, Dud. [Ga.], 107; Gross v. Fowler' 21 Cal. 393; Savings & Loan Society v. Thompson, 32 Cal. 347; Beacon v. State, 22 Fla. 46; Brown v. Williams, 34 Neb. 376; Heaston v. Cincinnati & F. W. R. Co., 16 Ind. 275; Snyder v. Warren, 2 Cow. [N. Y.], 518; Parsons v. Chamberlin, 4 Wend. [N. Y.], 512; French v. English, 7 Neb. 124; Roesink v. Barnett, 8 Neb. 146; Guaranty Trust Co. v. Green Cove S. & M. R. Co., 139 U.S. 137; People v. Ulrich, 2 Abb. Pr. [N.Y.], 28; Commonwealth v. Maxwell, 27 Pa. 444; Lester v. Garland, 15 Ves. [Eng.], 248; Hardy v. Ryle, 9 Bar. Cr. [Eng.], 603; Castle v. Burditt, 3 T. R. [Eng.], 623; Young v. Higgon, 6 M. & W. [Eng.], 49; Watson v. Pears, 2 Campb. [Eng.], 294; South Staffordshire Tramway Co. v. Sickness & Accident Assurance Association, 1 Q. B., 1891 [Eng.], 402; Radcliffe v. Bartholomew, 1 Q. B., 1892 [Eng.], 161.)

On December 29, 1893, the court pronounced sentence on plaintiff in error, by the terms of which he was to be confined in the county jail in solitary confinement until April 6, 1894, and then hanged. Under that sentence he was taken to the jail and kept in solitary confinement until the following day, when he was brought into court, the sentence vacated and a new sentence pronounced, fixing his execution at a later date, and his imprisonment at solitary confinement for a different period. The second sentence was absolutely without authority, for the reason that the punishment prescribed by the first being partly borne, the power of the court over it was exhausted. Under the constitutional guaranty that a man shall not be twice put in jeopardy for the same offense, the court had no power or authority to impose another and different sentence. (In re Fuller, 34 Neb. 581; People v. Kelly, 44 N.W. [Mich.], 615; People v. Meservey, 42 N.W. [Mich.], 1133; Ex parte Lange, 18 Wall. [U. S.], 163; In re Jones, 35 Neb. 499; State v. Gray, 37 N.J.L. 368.)

In support of the argument that the first sentence is erroneous and that the plaintiff in error should be discharged, reference was made to the following authorities: Criminal Code, sec. 503; Rex v. Ellis, 5 Barn. & C. [Eng.], 395; Rex v. Bourne, 7 Ad. & El. [Eng.], 58; Shepherd v. Commonwealth, 2 Met. [Mass.], 419; Stevens v. Commonwealth, 4 Met. [Mass.], 360; Christian v. Commonwealth, 5 Met. [Mass.], 530; People v. Taylor, 3 Denio [N. Y.], 91; Daniels v. Commonwealth, 7 Pa. 371; Beale v. Commonwealth, 25 Pa. 11; Commonwealth v. Ellis, 11 Mass. 465; Sheperd v. People, 25 N.Y. 406; State v. Gray, 37 N.J.L. 368; McDonald v. State, 45 Md. 90; Benedict v. State, 12 Wis. 313; Peglow v. State, 12 Wis. 534; Williams v. State, 18 Ohio St. 46; Picket v. State, 22 Ohio St. 405; State v. Shuchardt, 18 Neb. 454; Conklin v. State, 25 Neb. 784; Jackson v. State, 15 So. Rep. [Ala.], 351.

A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state:

Prior to the act approved April 8, 1893, the penalty for murder in the first degree was death. (Criminal Code, 1891, sec. 3.)

By the provisions of the act approved April 8, 1893, the legislature amended section 3 of the Criminal Code so that the penalty should be death or imprisonment for life, in the discretion of the jury. (Criminal Code, 1893, sec. 3.)

Section 24, article 3, of the constitution provides: "No act shall take effect until three calendar months after the adjournment of the session at which it passed, unless in case of emergency." The precise question presented is a construction of the meaning of the term, "three calendar months." The construction as applied to written constitutions should give effect to the intent of the people adopting it, so as to give meaning if possible to every word and phrase. (Cooley, Constitutional Law, 72; State v. Bacon, 6 Neb. 297.)

In 1850 the parliament of England defined the word "month" to mean calendar month. (13 and 14 Vic., c. 21.)

"Calendar month" has been defined one of the months of the year as enumerated in the calendar, without reference to the number of days it may contain. (Black, Law Dictionary; Abbott, Law Dictionary; Webster, Dictionary; 13 Am. & Eng. Ency. Law, 712; Encyclopaedia Britannica.)

"Calendar month" is one of the divisions of time as January, February, March. (Rapalje, Dictionary; Sedgwick, Statutory and Constitutional Law, 358, 372; Roesink v. Barnett, 8 Neb. 146; Opinion of the Judges, 5 Neb. 566; State v. Babcock, 22 Neb. 37.)

A week is a definite period of time, commencing on Sunday and ending on Saturday. (Steinbe v. Bell, 12 Abb. Pr., n. s. [N. Y.], 172; State v. Yellow Jacket Silver Mining Co., 5 Nev. 430.)

For a review of the authorities relating to the meaning of the word "month," see Guaranty Trust & Safe Deposit Co. v. Buddington, 12 L. R. A. [Fla.], 771.

In 1891 the term "three calendar months" was construed adversely to the contention of plaintiff in error by the attorney general. His construction has since been followed by the department of state. The construction given to a statute by those charged with the duty of executing it should not be overruled without strong reason. (United States v. Moore, 95 U.S. 760; Brown v. United States, 113 U.S. 568; Hahn v. United States, 107 U.S. 402; Cooper Mfg. Co. v. Ferguson, 113 U.S. 727; Stewart v. Laird, 1 Cranch [U. S.], 299; Peabody v. Stark, 16 Wall. [U. S.], 240; Ellis v. Glaser, 61 N.W. [Mich], 649; Westbrook v. Miller, 56 Mich. 151; Malonny v. Mahar, 1 Mich. 26; Britton v. Ferry, 14 Mich. 53; Continental Improvement Co. v. Phelps, 47 Mich. 299; Pease v. Peck, 18 How. [U. S.], 565; Coutant v. People, 11 Wend. [N. Y.], 511; Jackson v. Washington County, 34 Neb. 688; State v. Smith, 35 Neb. 24.)

Section 503, Criminal Code, provides that at least one hundred days shall intervene between the sentence and the day of execution. Where an error has been made in computing this time, the court has a right to set aside the judgment and resentence the prisoner. The imprisonment pending the date of execution, though solitary confinement, is no part of the sentence of the law, but merely incidental to the keeping of the prisoner. In case a mistake in the time has been made the court may set aside the sentence and resentence the prisoner. (State v. Shea, 95 Mo. 85; Lacy v. State, 15 Wis. 15; State v. Shaw, 23 Iowa 316; State v. Nicholson, 14 La. Ann. 798; Daniels v. Commonwealth, 7 Pa. 371; King v. Kenworthy, 1 Barn. & C. [Eng.], 711; Benedict v. State, 12 Wis. 348; Beal v. Commonwealth, 25 Pa. 11; People v. Riley, 48 Cal. 549; State v. Child, 42 Kan. 611; State v. Redman, 17 Iowa 329; State v. Knouse, 33 Iowa 365; State v. Tweedy, 11 Iowa 350; People v. Olwell, 28 Cal. 456; Sutcliffe v. State, 18 O., 469; Dodge v. People, 4 Neb. 220; Bohanan v. State, 18 Neb. 57.)

Judgment for a longer term than that authorized by law may be corrected and affirmed where the record discloses no other error. (Vaughan v. State, 83 Ala. 55; Webster v. Commonwealth, 5 Cush. [Mass.], 407; Chitty, Criminal Law, 722; Dodge v. People, 4 Neb. 226; In re Jones, 35 Neb. 499; State v. Treszevant, 20 S.C. 363; State v. Hoyt, 47 Conn. 542.)

In Kinsler v. Territory, 1 Wyo. Ter., 112, the prisoner was sentenced to be hanged. On the day following the sentence the court discovered an informality therein, vacated the sentence, and pronounced a new one. It was held that there was no error in the proceedings.

The court has a right to vacate or modify its judgment in a criminal as well as in a civil case during the term; and the plea of being once in jeopardy will not avail defendant upon the theory that he has served part of the punishment imposed upon him. (2 Coke, Littleton, p. 260a; Regina v Fitzgerald, 1 Salk. [Eng.], 401; Turner v. Barnaby, 2 Salk. [Eng.], 567*; King v. Price, 6 East [Eng. ], 327; Darling v. Gurney, 2 Dowl. [Eng.], 101; Tilden v. Johnson, 6 Cush. [Mass.], 354; Fay v. Wenzell, 8 Cush. [Mass]., 315; Stickney v. Davis, 17 Pick. [Mass.], 169; Wharton, Criminal Pleading & Practice, sec. 913; Commonwealth v. Foster, 122...