Opinion
No. 31199.
June 5, 1934. On Suggestion of Error.
1. TIME.
Under statute providing maximum imprisonment for possession of intoxicating liquor was three months, term "month" meant calendar month, in computing which time must be reckoned by looking at calendar and not by counting days, and, when not coincident with particular month named in calendar, such month would be period of time from day from which month was to be computed to day numerically corresponding thereto in following month less one, if following month had so many days, and, if not, to last day thereof (Code 1930, sections 1377, 1974).
2. TIME.
Where bail bond required accused to surrender himself to sheriff for sentence within one week after judgment of affirmance by Supreme Court was certified to circuit court, and suggestions of error in affirmance of judgment were overruled by supreme court June 5, accused's sentence of ninety days would not include month of February, and was not invalid as exceeding three calendar months, which was maximum term of imprisonment for possession of intoxicating liquor authorized by statute (Code 1930, sections 44, 1974).
APPEAL from Circuit Court of Simpson County.
Martin Berry, of Prentiss, for appellant.
We take the position that the sentence of the trial court is a nullity. If not a nullity in toto, then a nullity as to the imprisonment and that the supreme court is powerless to pass sentence in the exercise of its appellate jurisdiction. That if the supreme court can fix sentence, it must be for the fine only; but we think the proper procedure is to reverse and remand for proper sentence.
Our code fixes the term "month" as a calendar month "unless a contrary intention is expressed," and there is nothing of that here. The statute says in plain words "nor more than three months," that and "nothing more."
Bacon v. State, 22 Fla. 46; Simmons v. Horne, 39 So. 77.
Section 1974, Code of 1930, under which the purported sentence was pronounced, is a criminal statute and section 755, Code of 1930, does not apply.
Wilson v. Town of Hansboro, 54 So. 845.
There is nothing in the case at bar that can have any relation to surplusage, in our view. The sentence reads "ninety days" and the statute applicable reads "three months." If surplusage can be applied, then how many days in this case are the "deadwood?" How much will the court take off as surplusage? If this court imposes sentence here, then this court must write out of the sentence of the lower court "ninety days" and write in it "three months." If this is not applying the doctrine of substitution, then what shall we call it? We say with great respect.
The sentence is not complying with the statute and the trial court's judgment must stand or fall on the statute and it is only where there is manifest surplusage that our supreme court does not reverse and remand for proper sentence.
Avant v. State, 88 Miss. 226, 40 So. 483; Haynes v. State, 22 So. 871.
Where there is no judgment or where the judgment is a nullity or where an improper sentence has been imposed, the supreme court will reverse in order that the trial court may render correct judgment.
Kelly v. State, 3 S. M. 518, 1 Mor. St. Cas. 235; Easterling v. State, 35 Miss. 210, 2 Mor. St. Cas. 1086; Burden v. State, 92 Miss. 14, 45 So. 1; Bedell v. State, 50 Miss. 492; Haynes v. State, 22 So. 871; Holmes v. State, 146 Miss. 351, 111 So. 860.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The term "three months," as provided in the statute, evidently means "three calendar months," since the statute itself does not provide otherwise. Since it does not otherwise provide, it appears that section 1377 of the Mississippi Code of 1930 will apply here.
I do not find where our court has ever defined the term "calendar month." However, in those courts where this term has been defined, without exception, so far as I am able to determine, it has been defined in substance as "a month designated in the calendar, without record to the number of days it may contain."
Daley v. Anderson, 7 Wyoming, 1, 48 P. 839, 75 Am. St. Rep. 870; In re Parker's Estate, 14 Wkly. Notes Cas. 566; In re Gregg's Estate, 213 Pa. 260, 62 A. 856.
If it be conceded that the term "ninety days" does not comply with the statute, it is not necessary to remand the case for proper sentence, because that can be done here. It has been done in some several cases.
Goods v. State, 158 Miss. 616, 131 So. 106; Thompson v. State, 153 Miss. 593, 121 So. 275; Williams v. City of Louisville, 153 Miss. 48, 120 So. 571.
Argued orally by Geo. L. Martin and Ovie L. Berry, for the appellant, and by W.D. Conn, Jr., for the state.
The appellant was convicted of having in his possession intoxicating liquor. The judgment of the court below was affirmed on a former day.
The appellant has filed two suggestions of error, one in the regular form, addressed to the merits of the case, and another in the form of a motion challenging the validity of the sentence and suggesting that the judgment of the court below be reversed in so far as it imposes sentence and that the case be remanded to the court below for a proper sentence.
We must adhere to the affirmance of the case on its merits, and no question relative thereto is presented of sufficient character to justify a specific response thereto.
The challenge of the validity of the sentence presents a novel question. Section 1974, Code 1930, under which the appellant was convicted, provides that a person convicted thereunder shall be punished as follows: "By a fine of not less than one hundred dollars, nor more than five hundred dollars, or by imprisonment in the county jail not less than one week nor more than three months, or both, for the first conviction under this section."
The sentence imposed was a fine of five hundred dollars and "a term of ninety days in the Simpson county jail." The appellant says that a term of ninety days in jail might exceed three months, and such would be the fact if the month of February composed a part of the ninety days. "The term `month,' when used in any statute, means a calendar month, unless a contrary intention be expressed," section 1377, Code 1930, "in computing which `time must be reckoned by looking at the calendar and not by counting the days,' and when not coincident with the particular month named in the calendar such a month is the period of time from the day from which the month is to be computed to the day numerically corresponding thereto in the following month less one, if the following month has so many days; if not, to the last day thereof." Williams Bros. v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843, 845.
The appellant is therefore correct in saying that, when the month of February is included in the ninety-day period, more than three calendar months would be embraced therein, but such cannot be the case here. The appellant was enlarged on bail, and the statute, section 44, Code 1930, and his bail bond require him to "surrender himself to the sheriff of the county to suffer the judgment or sentence, if it shall be affirmed by the supreme court, within one week after the judgment of affirmance shall be certified to the circuit court." If the appellant complies with his duty under this statute, his term of ninety days cannot exceed three calendar months.
The suggestions of error will be overruled.