The construction of section 483-a of the Penal Law, only, is in issue on this appeal. Relator was indicted and pleaded guilty to a count of carnal abuse “of a child of the age of ten years ’ ’ in violation of that section. At the time of the alleged act the child was 10 years and 3% months old. We cannot agree that within the meaning of section 483-a a child is 10 years until he has reached his 11th birthday. Companion section 4834b has been amended five times. It is difficult to understand how these statutes could have received such periodic and repeated attention and yet create such confusion regarding their construction as to require the Attorney-General to support his argument (that there is no doubt about the legislative intent that a child should not be considered over 10 until he is 11) by explaining away the plain wording of the statute with an assertion that ‘ ‘ it came about that inevitably and unwittingly the drafters of the April 11 catchall law copied with exactness the words of the 1933 § 483-a and the 1937 § 483-b ’ ’. A word does not mean “just what I choose it to mean—neither more nor less ”, particularly when dealing with the matter of age which should be an item of competent proof and susceptible of precise definition. How simple and uncomplicated it would have been for the Legislature in dealing with section 483-a to have said “a child who has reached his 11th birthday” or merely “ under 11 years of age ” and with respect to section 483-b to have said “ 11 years and over ”, We concur with the majority’s assertion “that more precise language could have been used ” and surely should have been in its amendment of section 483-b. We add at the same time, however, that only through an amendment of section 483-a, similar to the one suggested, could the result reached by the majority be achieved under rules of statutory construction.
Caught up as we are in this dilemma we, of course, look to the history of the original enactment of sections 483-a and 483-b and their amendments, and employ all aids which are available to ascertain what the Legislature intended when it adopted the language here under consideration. The legislative history and the principles of construction are ably and well discussed in the prevailing opinion and will not be repeated here. At the threshold of our inquiry we must recognize that we are dealing with a penal statute. It is axiomatic that it must be strictly construed, and the burden is upon the People to demon*504strate that it applies to, and should be enforced against, the relator. Furthermore, section 21 of the Penal Law requires that its provisions must be construed according to the fair import of their terms or as Chief Justice Marshall wrote in Gibbons v. Ogden (9 Wheat. [22 U. S.] 1, 188) in referring to the framers of our Constitution: “ [they] must be understood to have employed words in their natural sense, and to have intended what they have said.” This principle of construction, and that which we urge, was succinctly expressed in People v. Wood (8 N Y 2d 48) where Judge Burke wrote (p. 51): We shall not vindicate the wrong by a strained interpretation of this legislative codification of the common law. Penal responsibility, unlike moral responsibility, cannot be extended beyond the fair scope of the statutory mandate (Penal Law, § 21; People v. Ryan, 263 N. Y. 298, 302).”
Although various legislative sessions have considered this problem, the courts of our State have had few occasions to deal with this question. The Wyoming County Court, in sustaining the writ, bottomed its determination on the authority of People ex rel. Cooper v. Martin (5 A D 2d 736) which construed section 483-b as amended, effective April 11, 1950, by chapter 525 of the laws of that year. This evident effort of the Legislature to eliminate the overlap in ages still left to interpretation the terms ten years or under” and “over the age of ten years ” in determining the classification of the act as a felony or misdemeanor. There is no legislative history in existence to aid us in determining what the Legislature intended when it first enacted section 483-a. It is significant that this section defining the crime as a felony when amended in 1950 repeated the very same language it used in 1927 — “ ten years or under ”. It is urged that in adopting the 1950 amendment of section 483-b the Legislature was influenced by a desire to change section 483-a in order to avoid the result reached by the Supreme Court in People v. O’Neill (208 Misc. 24) where the court held that “ ten years or under ” excluded a child who had passed his 10th birthday. The failure of the Legislature to have changed the pertinent language of section 483-a in its 1950 and 1957 amendments to section 483-b clearly indicates that it was not induced to amend section 483-b (and section 483-a by implication) by reason of People v. O’Neill, and that therefore the reasoning of that decision should be applied in the case at bar. If the 1957 amendment of section 483-b is construed to mean 11 years or over, this would create a gap of one year, applying as we believe we must, the O’Neill rule as to section 483-a.
*505Faced, as we are, with a paucity of New York decisions, we turn to the judicial determinations of other jurisdictions which have interpreted similar language and support the result we advocate. Uniformity and certainty are served by applying, as O’Neill did, the common-law rule that a person attains a given age on the day preceding the anniversary of his birth (1 Blackstone’s Comm., p. 463). One born on the first day of the year is consequently deemed to be one year old on. the 365th day after his birth — the last day of the year (Erwin v. Benton, 120 Ky. 536). As a basis for its decision in O’Neill, the court adopted the reasoning of the Supreme Court of Colorado in Gibson v. People (44 Col. 600). Under consideration in that case was the construction of a statute dealing with the crime of contributing to the delinquency of a child “ 16 years of age or under ”. In concluding that this language excluded a child who had passed his 16th birthday, the court said (p. 604): “in the true sense, it [child] is sixteen and over whenever it has passed beyond the first day of the sixteenth anniversary of its birth. Had it been the intention to include children up to the time they reach their seventeenth birthday, the general assembly would naturally have said children under seventeen years of age. ’ ” Similar determinations in sister jurisdictions are the following: Knott v. Rawlings (250 Ia. 892) (a child of 16 years 6 months was not “ a child of the age of sixteen years, or under ”); Jackson v. Mason (145 Mich. 338) (“ between and including the ages of seven and fifteen years ” did not go beyond the fifteenth birthday) ; Gingerich v. State of Ind. (228 Ind. 440, 449) (“ between the ages of seven and fifteen years inclusive * * * would not include the period between his fifteenth and sixteenth year.”); Butler v. State (81 Tex. Cr. Rep. 167 [Ct. of Crim. App. of Tex.]) (“ eight years and not more than fourteen years old ” did not include a child 14 years and 18 days old); Hobson v. Postal Tel.-Cable Co. (161 Tenn. 419) (“ between the ages of fourteen and sixteen ’’was inapplicable to a boy 16 years and 11 months); Thompson v. Commonwealth (201 Ky. 19) (“17 years of age or under ” did not include one 17 years and 3 months); Matter of Smith (351 P. 2d 1076,1078 [Ct. of Crim. App. of Okla.]) (“ over eighteen years of age” included a youth “ the first moment, of the 18th birthday”); State of Alaska v. Linn (363 P. 2d 361 [Supreme Ct. of Alaska] (“ over sixteen years of age ” applied to a defendant 16 years and 5 months. At page 363: “ We find the law to be quite well established that, with respect to penal statutes, a person is over or under a certain age, say sixteen years, when he has reached that particular anniversary of his birthday.”)..
*506What the majority is attempting to do is to come under the familiar rule of statutory construction that contemporaneous memoranda regarding particular legislation can serve as an aid in determining legislative intent. Section 483-a has, however, remained substantially unchanged to the present day. A legislative pronouncement of its intent 23 or 30 years after its enactment could scarcely be claimed to fit within that principle. (Cf. Matter of Leathersich v. Wade, 20 A D 2d 963.) In Leathersich we implicitly frowned on this type of testimony to determine local legislative intent in hearings before administrative agencies, where acquiescence for a period of time in the written meaning of words tends to justify public reliance on an ordinance. The applicability of this principle in interpreting criminal statutes is even more demanding. Criminal conviction by construction should be avoided unless the fundamental and basic meaning of the statute creating the crime is clear and unambiguous. Surely if there is doubt as to its meaning, a construction consistent with inapplicability of the statute should be resolved in favor of the defendant. Our position is well stated by Mr. Justice Brewer in Todd v. United States (158 U. S. 278, 282) in this statement: “It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms. ‘ There can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the statute. ’ United States v. Lacher, 134 U. S. 624; Endlich on the Interpretation of Statutes, sec. 329, 2d ed.; Pomeroy’s Sedgwick on Statutory and Constitutional Construction, 280.”
In our judgment County Court was correct in sustaining the writ and should be affirmed.
Williams, P. J., and Henry, J., concur with Bastow, J.; Goldman, J., dissents and votes for affirmance in opinion, in which Noonan, J., concurs.
Order reversed, writ dismissed, and relator remanded to the custody of the Warden of Attica State Prison.