McKinney v. State

• Citation: 66 S.W. 769
• Parties: McKINNEY v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 29 January 1902
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

66 S.W. 769

McKINNEY v. STATE.¹

Court of Criminal Appeals of Texas.

January 29, 1902.

Appeal from Collin county court; J. H. Faulkner, Judge.

Sam McKinney was convicted of aggravated assault, and appeals. Affirmed.

Garnett, Smith & Merritt, for appellant. Abernathy & Beverly and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was charged by indictment with an aggravated assault, upon trial was convicted, and his punishment assessed at a fine of $50 and 30 days' confinement in the county jail.

The assistant attorney general has filed a very able brief in this case, and we adopt the same as the opinion of this court, to wit:

"The record is without statement of facts or bill of exceptions. The motion for new trial complains that the court erred in refusing to quash the first and second counts in the indictment. The state submits, there being no statement of facts, and no formal motion to quash having been made in limine, and the fourth count in the indictment being unquestionably good, the verdict may be applied to the fourth count. Where any count in the indictment is good, and the verdict is general, the verdict may be applied to the count that is good. Isaacs v. State, 36 Tex. Cr. R. 505, 38 S. W. 40. Appellant, in his brief, practically presents but one proposition; that is, that the punishment for aggravated assault being by fine not less than $25 nor more $1,000, or imprisonment in the county jail not less than one month or more than two years, or by both such fine and imprisonment, the judgment of the court, assessing thirty days' imprisonment in the county jail, does not comply with the minimum punishment fixed by law. The authorities cited by appellant in his brief show conclusively that, where the word `month' is used in a civil statute, the meaning of the same is a calendar month. This is made so by a specific statute. See Sayles' Ann. Civ. St. art. 3270. A month, as used in the civil statute, is a calendar month, and is determined arbitrarily by the number of days that the calendar gives to each particular month; that is, thirty-one days for January; twenty-eight for February, except leap year, etc. In civil contracts, in estimating what is a calendar month, the authorities are almost unanimous in holding that it is to be counted from the particular day when it begins to the corresponding day in the month in which the time expires; that is, if it begins on the 5th of January, it would end on the 5th of February, although thirty-one days would elapse. If it begins on the 5th of February, it would end on the 5th of March, although but twenty-eight days have elapsed, leap year being excepted. Or if it begins on the 5th of February during leap year, it would end on the 5th of March, although twenty-nine days elapse. If it begins on the 5th of June, it would end on the 5th of July, although thirty days had elapsed. In estimating a calendar month on civil contracts, if the month in which the period ends has not the corresponding day of the month when the period began, the time expires with the end of the month; that is, if it began on the 31st day of January, there being no 31st day of February, it would end on the last day of February,—either the 28th or 29th, according to whether or not it was leap year. McGinn v. State (Neb.) 65 N. W. 46, 30 L. R. A. 452, 50 Am. St. Rep. 617, and authorities there cited. This cannot apply to a criminal statute, for the following reasons. The punishment in fixing its minimum and maximum, must be definite and inflexible. The word `month,' as used in the cases cited by appellant, means originally, under the common law, a lunar month of twenty-eight days. 16 Am. & Eng. Enc. Law, under `Month'; Rap. L. Law Dict. p. 835. Rapalje's Dictionary, defining what the calendar month means, states that they are of unequal length, according to the almanac or...