dissenting:
At oral argument in this case, the members of the division of the court and counsel for both parties readily conceded a lack of prior personal knowledge of the narrow and novel legal principle at issue. Nonetheless, in presenting its contention that appellee became 18 in the eyes of the law on the day before his 18th birthday, the government was advocating a common law rule which had been unbroken for more than 300 years, with the single exception of a New York opinion which is quite cursory and lacking in analysis. People v. Stevenson, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615 (1966), adopting a dissenting opinion in People v. Stevenson, 23 A.D. 472, 262 N.Y.S.2d 238, 242-43 (1965) (Christ, J., dissenting).
The majority opinion in this case quotes certain broad comments concerning unreasonable rules of law, and then states:
*1072In the absence of any reasons supported in logic, we decline to follow a rule which defines human experience by determining age on the day preceding one’s birthday. [Ante, at 1070.]
I cannot accept such a characterization. It is quite logical to recognize, for example, that a baby is not zero days old on the date of its birth; it then is considered to be one day old.1 Three hundred and sixty-four days later, on the eve of the anniversary of its birthdate, that same baby has been living for 365 days, and hence analytically is one year old. Our society’s practice of celebrating the anniversary of a birthdate does not alter that basic fact.
While a case presenting this problem quite understandably arises seldom in either a criminal or civil context, the government in its brief cites an impressive list of consistent authorities for its position, ranging from Herbert v. Turball, 83 Eng.Rep. 1129 (K.B.1663), and Nichols v. Ramsel, 86 Eng. Rep. 1072 (K.B.1677), through Blackstone’s Commentaries2 and on to a solid listing of more contemporary American courts which have not found an entrenched and sensible common law principle something lightly to be cast aside. See, e. g., Turnbull v. Bonkowski, 419 F.2d 104, 105-06 (9th Cir. 1969); Fisher v. Smith, 319 F.Supp. 855, 858 (W.D.Wash.1970) (three-judge court) (“The common law rule for computing age is that one is deemed to have reached a given age at the earliest moment of the day preceding an anniversary of birth”); Commonwealth v. Howe, 35 Pa.Super. 554 (1908). Squarely on point is In re F. W., 130 N.J.Super. 513, 327 A.2d 697 (1974), in which the court concluded that a respondent became 18 years of age on the day before his 18th birthday, and hence was no longer subject to the exclusive jurisdiction of the Juvenile Court.
I do not wish to protract this expression of views unduly, but two quotations warrant inclusion herein. In Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640 (1948), which presented a statute of limitations question, the court stated:
For over 200 years, the common law has, however, recognized . . . that, in computing a person’s age the day upon which that person was born, even though he was born on the last moment thereof, is included, and he therefore reaches his next year in age at the first moment of the day prior to the anniversary date of his birth. . . . This exception has become so well established over a long period of time that it has attained an independent status of its own. [Id., at 642.]
In State v. Brown, 443 S.W.2d 805 (Mo.1969) (en banc), a defendant contended that he did not become an adult not only until the 18th anniversary of his birthdate, but moreover until the precise hour and moment of his birth had been reached. Rejecting that contention, the court stated:
[ A]s a general rule, the law does not consider fractions of a day While exceptions to this rule have been made by various courts, most relate to situations where the two acts occur on the same day, such as priorities of liens or deeds filed on the same day. As to computation of a person’s age, the same contention as defendant here makes was made in the early case (1633) of Herbert *1073v. Turball, [supra] and the court stated: “ * * * and whatever hour he was born is not material, there being no fraction of days.” No cases to the contrary have been found.
A second rule of the common law contrary to defendant’s theory is the rule that a person reaches his next year in age at the first moment of the day prior to the anniversary of his birth. ... It may be noted that this rule does not follow the general rule of common law for the computation of time, which was to exclude the first day and include the last. This exception has been followed for such a long period of time that it has achieved a status of its own and should be followed in the absence of a statutory enactment to the contrary. [Id., at 806-07 (citations omitted).]
The long-term consequences of the majority’s opinion in this case may not be great. Irrespective of that fact, it would be one thing if the majority were to say candidly that the virtually unvarying common law rule on the issue before us is inconsistent with society’s general understanding, and that henceforth all persons shall be deemed to have their ages legally determined by the anniversaries of their birthdates rather than by their actual chronological ages. That result (more appropriately a judgment to be made by the legislature, I respectfully submit [see Turnbull v. Bonkowski, supra, at 106]), however, is not reached. The majority assiduously limits its ruling to declaring that this appellee, who had lived 17 years and 365 days when he was arrested and charged with the sale and distribution of hashish (a charge later reduced to possession), should not be treated as though he had reached the age of 18.3 The manner of making age determinations for all other purposes is specifically left open.
I do not favor an approach whereby a person’s age is determined on an ad hoc basis in light of the supposed policies underlying the particular principles presented by each case. A consistent rule for determining age inescapably is much to be preferred, and I believe that consistency would best be served by applying the common law rule that has been virtually unchallenged since at least 1663.4 Accordingly, I am unable to concur in the manner of my colleagues’ disposition of this appeal.
. This, of course, is predicated on the time-honored common law rule which does not recognize fractions of days. The majority does not challenge that rule in reaching its decision.
. Blackstone concluded a discussion of attaining various ages and the consequences thereof as follows:
So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person’s birth (q)(12), who till that time is an infant and so styled in law .
(12) If he is bom on the 16th of February, 1608, he is of age to do any legal act on the morning of the 15th of February 1629, though he may not have lived twenty-one years by nearly forty-eight hours: the reason assigned is, that in law there is no fraction of a day; and if the birth were on the last second of the preceding day twenty-one years after, then twenty-one years would be complete and in law it is the same whether a thing is done upon one moment of the day or on another. [1 W. Blackstone, Commentaries * 463 (citations omitted).]
. The majority bases its ruling on the humanitarian and rehabilitative purposes behind §§ 11-1101(13) and 16-2301(3) of the D.C. Code. Implicit in such an analysis is the dubious assumption that there is some rational distinction between a person’s capacity to be rehabilitated on the day before the anniversary of his 18th birthday and his capacity a day later.
. Prior to the time the opinions in this case were sent to the printer, we were unaware of the August 1979 decision of the Minnesota Supreme Court by which that court appears to have ruled contrary to the great weight of authority in this country and reached the same result as the majority does here. The majority added a reference to that case in its footnote 6. The Minnesota ruling does not alter my views; like the majority, I simply add this footnote to this opinion rather than otherwise revising its content.