#### THE STATE *vs.*STANSBURY JACOBS and others.

At common law the term month means *lunar,*and not calendar month..

And this is not altered by our act of assembly, *{Dig.*143,) except in reference to the punishment of crime.

The limitation to indictments for *horse-racing, cock-Jighting,*&c., under *Digest,*141, is six *lunar*months.

Sussex,

October Term, 1838.

Indictment for horse racing.

*(Note.*— The foreman of the grand jury was one of the defendants; and the court, on being informed by the grand jury that they were considering a bill in which he was implicated, appointed another foreman, and gave him leave to retire.)

The indictment in this case was under the act of assembly, and laid the offence in the different counts for instituting, being concerned in, and betting on a horse-race ; on the 19th and '¿Oth of October, 1837. The grand jury met on the 9th April, 1838, and the indictment was found on the 11th April.

“ If any person or persons shall institute, or be concerned in, or shall bet upon, any horse-race, cock-fight,” &c. “ every person so offending upon conviction thereof shall forfeit and pay to the state a fine of thirty dollars : no indictment shall be preferred for an offence against the foregoing provision after the expiration of six months from the day of committing the offence.” *(Digest,*141.)

*Frame,*for the defendants,

took the position that this indictment was not in time; and moved the court to instruct the jury to acquit them. He argued that the term months in the statute was to be construed *lunar*months of twenty-eight days, and not calendar months. This is the general rule when a month is mentioned, whether in construing contracts or statutes, unless the contrary be expressed, or obviously meant. (3 Stark. 1398-9.) This general principle is not varied by any thing in our act of assembly ; that act changes the mode of computing time only in reference to the punishment of crime.

*“*In every case in which corporal punishment is to be inflicted, the court in the sentence shall assign the day thereof; and, whenever imprisonment shall be a part of the punishment, the court in the sentence shall specify the day on which the term shall commence, and *549also the day on which it shall expire. In reckoning months, every month shall be a calendar month; and a term of months of imprisonment shall beso many calendar months, and shall expire upon the same numerical day (including the same) of a calendar month, upon which it shall have commenced.” *{Digest,*143.)

*Rogers,*deputy attorney general, for the state,

contended that fhis provision in the fourth section of the act punishing certain crimes, &c. was not to be confined to the matter of punishment", but was a general provision changing the computation from lunar to solar time, at least as to all criminal, if not to all civil matters. He admitted that the rule of the English temporal courts is, that where a statute mentions a month without specification as to what kind of time, a lunar and not a calendar month is meant; but this is a mere arbitrary rule, adopted by the courts in ancient times, and probably growing out of a general hostility to the ecclesiastical courts, where the same word is adjudged a calendar month. In all the American cases which he had seen, the courts have refused to follow the English rule, except in New York, whose servile imitation of the English precedents is proverbial. *{Com.*vs. *Chambre,*4 *Dallas,*143.) He therefore stated it as a general rule of the courts of the several states, with the single exception of New York, that where a statute speaks of months alone, the construction shall be calendar and not lunar months. In the construction of a statute as to a doubtful matter the argument of inconvenience properly applies; and the compution of time by calendar and not by lunar months, is by far more convenient. A contrary construction would leave a period between the courts twice a year when the offence of horse-racing might be committed with impunity, as more than six calendar months intervenes. Common understanding of the meaning of words has influence in the construction of statutes. Months are universally understood calendar months; no others are known, except as a matter of science. The term as used in the amended constitution, must be understood calendar month, according to public usage. Residence of one *month*in the county to qualify a voter: payment of a tax assessed six *months*before the election. What are these; calendar or lunar months'? Undoubtedly by universal understanding the former.

*Per Curiam.*

J. M. Clayton, *Chief Justice:*

There is no principle of common law better settled in England, than the general rule of her temporal courts that, in construing a statute, the word months shall be confined to lunar instead of calendar months, unless the statute law shall otherwise define its meaning. 2 *Rlac. Com.*141; 6 *Term Rep.*224; *Doug.*463. A conviction under the statute 5 *Ann, c.*14, 54, must take *550place within three lunar months. See 1 *B.*& *C.*500. See also *7 Johns. Rep.*217, *Jackson*vs. *Clark;*1 *Johns. Cases*100, *Leffingwell et al*vs. *White;*15 *Johns. Rep.*120, *Loring*vs. *Halling;*3 *Stark. Ev.*1398; 3 *Johns. Ch. Rep.*74; *Stackhouse*vs. *Halsey.*A different rule has indeed prevailed in several states of the union; but the common law of England is our guide in the construction of a statute.

The only question then to be considered is, whether the statute law has defined the word so as to change the common law construction. (Digest, 143, ante 548-9.) It is contended for the prosecution, that this provision is not to be restricted to the special subject matter of the section of which it is a part, but that it is a general provision regulating the construction of the whole statute.

The subject matter of this whole section of the act is corporal punishment. It first prescribes the mode in w'hich the punishment of death shall be inflicted, and directs the court to fix the time of execution. It next directs the court *in every case*in which corporal punishment is to be inflicted to assign the day of punishment. It then proceeds to prescribe the specification in every sentence of imprisonment, of the day of the commencement and of the expiration of that imprisonment. Then *in eodem jlatu,*in the same paragraph, and evidently in reference to the same subject (of corporal punishment) it directs that in reckoning months, every month shall be a calendar month. So that should the court order capital execution at the expiration of one month, the construction of the sentence must be, that the prisoner must be allowed a calendar instead of a lunar month. And should the court order any other corporal punishment to be inflicted at the expiration of one or more months, the computation must be made by solar and not by lunar time. The section then provides also, that a term of months of imprisonment shall be so many calendar months. The meaning might undoubtedly have been more concisely expressed, for it was sufficient for all purposes to have said that *“*in *every case*in which corporal punishment is to'be inflicted, the court in the sentence shall assign the day thereof,” without the separate provision that a day should be assigned for a capital execution : and so the general provision in reference to all corporal punishment, that “ in reckoning months every month shall be a calendar month” was perhaps sufficient for all the purposes designed, without adding that “ a term of months of imprisonment shall be so many calendar months.” But the object of the legislature in thus multiplying words on the same subjects, was to be as explicit as possible. And if these words shall be construed as altering the whole law regarding the computation of time, instead of thus confining them to the exposition of the context, and controlling their import *secundum**551*subjectam mak*unnecessary; shall be so man' ing change in th provision be not ¿I i ishment, how far to the single penal such as that of the 1837 ; and other pet ments for offences, rei February, 1826, refers to cS iere is its limit? /is a part? If so, thenV^ /&! ; or that of the 21st FeBh> statute book, prescribing punish-months; while the act of the 8th 5r months alone, and the same words in different parts of the same criminal code must receive different constructions. If the clause be general in its import, it controls the computation of time in all the law; and months in statutes not penal as well as in the act where it is found are calendar and not lunar months. Thus a clause evidently designed to extend to the statutes regarding corporal punishment alone, becomes the means of revolutionizing the whole established law on the subject of the reckoning of time, as well in civil as in criminal cases. If we view the words as they stand, as being doubtful in their import, this consideration that one construction would involve the whole law on this point in confusion, will be sufficient to drive us to repudiate an exposition attended with such consequences.

Much has been said about the inference to be drawn from the intent of the legislature to punish horse-racing, and it is urged that the law has made it an offence to be punished in every possible case. But we can gather the intent only from the language of the law, and nothing is more clear than that it was not the intent at the time of passing this very act of 8th February, 1826, to punish racing, or to regard it as any offence whatever, if done at a certain season of the year. Thus this act ordains “ that no indictment shall be preferred for the offence (horse-racing, &c.) after the expiration of six months from the day of committing the offence.” The courts by law were compelled to sit in this county in the year 1826, when the law was enacted, on the 17th April, and the 13th November; so that nearly seven months elapsed between the spring and fall terms of the only court in which a bill of indictment could be preferred for horse-racing, and of course for several weeks after the discharge of the grand jury in the spring of the year, any man might be concerned in a horse-race with impunity, whether months be construed as calendar or lunar. Such was the clear law at the time of the passage of the very act on which this indictment was founded ; and even now, such is the effect of the limitation of six months, under the present

*552Rd be impossiindictment for ?] any computa-

contintl entertain a bill o: months from the time of the race, such cases as the present. It is lunar months elapsed after the race, a'nc licy of the act, or : totally to prohi'd enforce the prohich expressly for-acing after six authority to punish in mitted that more than six before the preferring of this bill of indictment; and we could not warp the words in this or any other penal statute from their legal meaning for the purpose of punishing an act, however desirous we might be that the law had been different.

The defendants were acquitted.