A-5924717.
Decided by Board May 16, 1946
Sentence — One year — Section 19 of the Immigration Act of 1917 — Sentence of "12 months" (New Jersey).
Under New Jersey law the term "month" means a calendar month (as opposed to the common law rule of lunar month), so that a sentence of "12 months" under the law of New Jersey is a sentence for a year, within the meaning of section 19 of the Immigration Act of 1917.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes involving moral turpitude; assault with intent to carnally abuse-(three offenses).
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Italy, 55 years years old. He last entered the United States at New York in May 1926, in possession of a reentry permit.
On November 3, 1943, respondent was found guilty by the Essex County Court of Quarter Sessions on three indictments. Each indictment charged that respondent assaulted a girl in 1943, with intent to carnally abuse the girl, who was more than 12 and less than 16 years of age. On each indictment the court sentenced respondent to imprisonment in the county penitentiary for 12 months and the sentences ran consecutively.
Conviction of respondent occurred under section 2: 110-2 of the New Jersey Revised Statutes Annotated, and the offense there clearly involves moral turpitude. Since there were three separate sentences for three separate crimes, committed at different times, respondent was sentenced more than once within the meaning of section 19 of the Immigration Act of 1917. Matter of M----, 56113/232 (January 30, 1945). (See note below as to the rejection of the interpretation used here.)
The provisions of law relating to "sentenced more than once" has been construed by the Supreme Court of the United States in Fong Haw Tan v. Phelan ( 333 U.S. 6, 9) to "authorize deportation only where an alien having committed a crime involving moral turpitude and having been convicted and sentenced, once again commits a crime of that nature and is convicted and sentenced for it."
The only remaining question is whether respondent was sentenced for a year or more within the meaning of section 19. Counsel in his brief urges that a sentence to 12 months in New Jersey is not equivalent to a sentence to 1 year. He argues: (1) At common law the word "month" meant lunar month of 28 days and not a calendar month; (2) the common law rule is still in effect in New Jersey unless changed by statute; and (3) the only New Jersey statute on the question does not change the common law rule as applied in determining the length of the sentence which respondent received.
The statute cited by counsel is New Jersey Statutes Annotated 1:1-2, which reads:
Unless it be otherwise expressly provided, or there is something in the subject or context repugnant to such construction, the following words and phrases, when used in any statute and in the Revised Statutes, shall have the meaning herein given to them * * * The word "month" means a calendar month, and the word "year" means a calendar year.
Counsel urges that this statute defines a month as a calendar month only when the word is used in any statute or in the Revised Statutes. In this case, he argues, the term "12 months" was used not in any New Jersey statute, but in the sentence by the court. Therefore, he contends, that common law definition applies and the conclusion follows that respondent has not been sentenced for 1 year or more on any of the three offenses.
A good summary of this question appears at 26 R.C.L. 732:
* * * The early common law rule was that in all statutes a month signifies a lunar month, unless it appears to be clearly intended to be a calendar month; and in all legal documents and proceedings the legal month is a lunar month * * * But * * * a month was deemed a calendar month * * * in regard not only to negotiable instruments but all commercial contracts. In England the rule became a source of judicial regret as early as 1795, and in 1850 it was changed by statute (13 and 14 Victoria, Chap. 21). In the United States the common law rule was followed in the early days of the republic. But, however wise this rule may have been in its origin, the reason of it has long ceased, at least in this country, where the popular understanding on the subject is so entirely changed that in all the transactions and business of life the month is universally estimated by the calendar * * * And in later years it has been considerably relaxed, and the term "month" almost, if not quite, universally computed, and especially in statutes and judicial proceedings, by the calendar, unless there is something in the statute, or contract under construction, which indicates that a contrary meaning was intended * * * The courts hold that the lawmaking power should be understood to have used the term in the same sense as the people use it * * * Most of the states and territories have by legislative enactment declared the term "month", when used without qualification, to mean a calendar month.
The United States Supreme Court has ruled that the word "month," when used in contracts or statutes, must be construed, where the parties have not defined it, as a calendar month. In that case, the word occurred in a Florida statute, and the Florida courts had previously followed the same rule. Guaranty Trust Company v. Green Cove Springs Railroad Co., 139 U.S. 137, 145 (1891). In an earlier case, however, the Supreme Court held that the term "month" as used in a lease meant a calendar month; although there was a State statute defining the word "month" as a calendar month when used in a statute, the statute, did not define the word as used in a lease. Sheets v. Selden's Lessee, 69 U.S. 177 (1864).
We need not consider the rulings of other jurisdictions, because we believe that the New Jersey courts have rejected the common law rule. The only case on the subject is Bohles v. Prudential Insurance Company, 83 N.J.L. 246, 83 Atl. 904 (1912), affirmed, 84 N.J.L. 315, 316, 86 Atl. 438 (1913). This was a suit on a life insurance policy. In defense, the company claimed that the premium due on June 30, 1904, had not been paid during the one-month period of grace stipulated in the policy. The evidence showed that the premium was paid on August 1, 1904. The court held that the one-month grace period meant a calendar month, and therefore the last day of grace was July 31. Since this day was a Sunday and the company afforded no opportunity to make payment on that day, the insured was entitled to pay on the first business day afterwards, August 1.
This is a holding by the highest court in New Jersey that the term "month" as used in an insurance policy means a calendar month, not a lunar month. The court cited no New Jersey authority for its holding. Counsel for respondent urges that a calendar month period of grace in life insurance policies is provided by statute in New Jersey, and this statute would be construed to be a part of the policy even if the policy did not contain such a provision. The statute he refers to is evidently New Jersey Statutes Annotated, 17:34-15, and it is counsel's contention that the word "month" as used in that statute is necessarily defined as a calendar month by section 1:1-2, set forth above.
There are three difficulties with this attempt by counsel to explain away the Bohles case. First, the court does not refer to any statutory provision. Second, section 17:34-15 did not come into effect until January 1, 1908, and therefore it could not affect the policy in the Bohles case, which was issued in December 1902.
The third difficulty is as follows: Counsel's contention concedes that the New Jersey court construed the word "month" in the same way that this word was defined by statute. If it was proper for the court to do so in the Bohles case, we think that the phrase "12 months" in the case before us, as used by the court in sentencing respondent, should also be construed as if this phrase occurred in the New Jersey statute.
Where the maximum term of imprisonment in a New Jersey statute is 6 months, and a defendant is sentenced under that statute to 6 months in prison, it seems clear that he is sentenced to a term of 6 calendar months, not 6 times 28 days. If he is sentenced under that statute to 5 months, again it seems clear that he is sentenced to 5 calendar months; and we think no different result should be reached in the present case merely because the maximum term of imprisonment is defined in years rather than in months. In other words, the word "month" when used by a New Jersey court in imposing sentence, should be construed in accordance with the definition of that word when used in the criminal statutes.
In any event, we believe that the Bohles case is a definitive holding by the New Jersey courts that the common law rule has been rejected in that State, and that the term "month" in New Jersey means a calendar month.
We conclude that respondent has been sentenced three times for a period of 1 year in punishment for crimes involving moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That respondent is an alien, native and citizen of Italy;
(2) That the respondent last entered the United States in May, 1926, at the port of New York in possession of a reentry permit;
(3) That on November 3, 1943, respondent was convicted in the Essex County Court of Quarter Sessions on three indictments each indictment charging him with assault on a girl between the ages of 12 and 16, committed in 1943, with intent to carnally abuse the girl, and sentenced to imprisonment in the county penitentiary for 12 months on each conviction, the three sentences to run consecutively.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917 respondent is subject to deportation on the ground that after May 1, 1917 he has been sentenced more than once to imprisonment for a year or more because of conviction in this country of crimes involving moral turpitude, committed after entry, namely, assault with intent to carnally abuse (three separate sentences);
(2) That under section 20 of the Immigration Act of 1917, respondent is deportable to Italy at Government expense.Other Factors: Respondent has a wife and two sons in Italy. He is separated from his wife, and the two sons are apparently both over the age of 21. Respondent has not taken advantage of the opportunity to apply for the relief stated in section 19 (c) of the Immigration Act of 1917, as amended.
Order: It is ordered that respondent be deported to Italy at Government expense on the charge stated in the warrant of arrest.