The State v. Jeremiah Asbury, 26 Tex. 82

Wheeler, 0. J. This was an indictment for a misdemeanor found before the Penal Code went into effect, under

article 2,554 of Hartley’s Digest. The law required the offence to be prosecuted within two years after its commission. (Acts of 1854, p. 70, §75.) The indictment was found on the first day of January, 1857, and it charges the offence to have been committed on the first day of January, 1855. Was the prosecution barred by the statute at the time of finding the indictment? We are of opinion that it was. We deem it unnecessary for the decision of this case to enter upon a review of the authorities upon the question of the computation of time. They will be found reviewed in Angelí on Limitations,

chapter 6. It is said that it is impossible to reconcile the decisions; and the conclusion is deduced that, in the computa^ tion of time, whether the day on which

an act is done or an event happens is to be included or excluded, depends upon the circumstances and reason of the thing, so that the intention of the parties may be effected. “ Such a construction should be given as will operate most to the ease of the party entitled to favor. This is said to be the rule in O’Connor v.

Towns, 1 Texas, 107; and besides being sensible in itself, is probably as accurate a statement ■of the result of all the cases as can be made.” (Angell on Lim., ch. 6, § 50, note 5, 3d ed.) The application of this doctrine to the present case would require the inclusion, in the computation, of the day on which the offence was committed. That is the construction which will operate most to the ease of the party in whose favor the statute was enacted.

It is the construction required, moreover, by the rules of construction applicable to criminal cases—that is, that the statutes and proceedings be construed strictly against the prosecution and in favor of the accused. Including, then, the day of the commission of the offence in the computation, the prosecution was not commenced in time, and is barred by the statute. This opinion requires that the judgment be affirmed. Judgment affirmed.