McGinn v. State

Decision Date19 November 1895
Citation65 N.W. 46,46 Neb. 427
CourtNebraska Supreme Court


Syllabus by the Court.

1. The term “calendar month” is used in section 24, art. 3, of the constitution in the sense in which it was understood prior to the adoption of that instrument.

2. The term “calendar month,” whether employed in statutes or contracts, and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning, less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof.

3. The provision of section 895 of the Code of Civil Procedure, for the exclusion of the first day in computing the time within which an act is to be done, was intended to establish a uniform rule, applicable alike to the construction of statutes and to matters of practice.

4. The penalty for murder in the first degree was, by section 3 of the Criminal Code, as originally adopted, death by hanging. By an act approved April 8, 1893, passed without an emergency clause, said section was so amended as to provide that the penalty for the crime therein denounced shall be death by hanging, or imprisonment for life, in the discretion of the jury. The legislature of 1893 having adjourned on the 8th day of April of that year, held, that said amendment took effect on the 9th day of July following.

5. When the defendant in a criminal prosecution is adjudged guilty of the crime charged, and subsequently procures a reversal of the judgment of conviction on account of error by the trial court, he will be held to have waived his right to object to further prosecution on the ground that he has been once put in jeopardy.

6. While the practice of confining persons convicted of capital offenses from the date of sentence until the day of execution has prevailed from time immemorial, such confinement is not a part of the penalty, although a necessary incident thereof, and the power of the court in that regard does not rest upon any positive provision of statute.

Error to district court, Douglas county; Scott, Judge.

Barney McGinn, having been convicted of murder, brings error. Reversed.Mahoney, Minahan & Smyth and Estelle & Hoeppner, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.


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 McKenna, 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 three (3) of the Criminal Code * * *,” 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.” Sess. Laws 1893, p. 386, c. 44, § 2. 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 legislature 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. 2 Bl. Comm. 141; Bish. Cont. § 1339; Migotti v. Colvill, 4 C. P. Div. 233; Lacon v. Hooper, 6 Term R. 224; Churchill v. Bank, 19 Pick. 532;Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137, 11 Sup. Ct. 512. In this country many of the earlier cases follow the rule of the common law. Vide Ellis' Case, 8 N. J. Law, 232; Loring v. Halling, 15 Johns. 119;Stackhouse v. Halsey, 3 Johns. Ch. 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, 51 N. W. 851, and cases cited. In order to avoid the confusion arising from conflicting constructions of the term, 35 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 & 14 Vict. 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 the 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 21st 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 of the assignment law (Comp. St. c. 6), 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. 518, 15 calendar months was computed from August 15, 1822, to November 15, 1823. In McGuire v. Ulrich, 2 Abb. Prac. 28, the statute required one month's notice to quit before suit brought. The notice was given April 18th, and it was held that a calendar month had intervened before the commencement of the action, to wit, May 25th. In Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., supra, the first publication of notice was made August 9th, the answer day named being December 1st following. After computing the time at 114 days, the court say the time is “more than four lunar months, but 8 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 Com. v. Maxwell, 27 Pa. St. 444, the statute provided that in case of vacancy in the office of judge of the 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.” Act April 27, 1852, p. 465. The presiding judge died July 15, 1856, and the general election for that year occurred October 14th. 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, 53 N. W. 509, 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 4th, it would not be complete until June 1st. 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. 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 intermarry, she would within six calendar months thereafter pay certain bequests therein made. The testator died January 12th, and the security given July 12th was held to satisfy the requirement 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...

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