32 Del. 556 | New York Court of General Session of the Peace | 1924
delivering the opinion of the Court:
The determination of this matter is largely a question of statutory construction. It was tacitly assumed at the argument that a sentence of six months commencing on the 18th day of September should properly terminate on the 17th day .of March next ensuing. In view of the determination we have reached in this case it is unnecessary to reach such conclusion. A plausible argument to the contrary may be made. It is certain, however, that now and for some time past it has been the invariable practice of the courts of record of this state to order the imprisonment to commence upon a certain day and to terminate upon a fixed day in the future, which day is numerically one less than the day upon which the imprisonment commenced, the length of the term, of course, determining the date of the ending of the imprisonment.
It may not be uninteresting to show that this was not always the case. By Section 4 of Chapter 362, vol. 6, Laws of Delaware, passed February 8, 1826, it is provided:
“* * * And a term of months of imprisonment shall be so many calendar months, and shall expire upon the same numerical day (including the same) of a calendar month upon which it shall have commenced.”
The statute remained in this form until substantially the language of the present act was incorporated into the Revised Code
We have been unable to find that any other state has a statute requiring the dates of the commencement and termination of the term of imprisonment to be specifically set out.
The sole question then to be determined under our statute is this: Where a specific term of imprisonment of six months is imposed, and assuming that the dates of commencement and ending of the imprisonment show a term of six months and one day, which is to prevail? The question was considered somewhat in the case of McCoy v. Sheriff of New Castle County, supra, and we adopt the language of Grubb, J., at page 441, where he says:
“The conclusion seems unavoidable that our statute, in requiring the said times of commencement and ending to be specified, simply prescribes a rule of mathematical convenience as a matter of descriptive detail which is subordinate to the paramount rule of fixing the term or quantum of the imprisonment.
“To adopt this view, is to give a consistent and reasonable effect to the entire statute.
“To maintain the contrary, is to hold that our Legislature intended that what was of lesser should control that which was of greater importance, and that what was not indispensable should be paramount to that which was absolutely necessary. * * * ”
It may not be out of place to state that in the report of McCoy v. Sheriff of New Castle County, in 9 Atl. 416, it is shown that the opinion of the court was delivered by Comegys, C. J. In 9 Houst., Judge Houston delivered the opinion, which was concurred in by Judge Wootten. Comegys, C. J., concurred only in the result; he having arrived at this result upon a different ground.
The judgment of the court below is affirmed.
