State v. Boliski

| Wis. | Feb 3, 1914

Maeshall, J.

It is considered that the bottle of nitroglycerine with the fuse and detonating cap clearly answer to the calls of the statute for a “tool, machine or implement,” adapted to the particular use mentioned therein, designed to that end, and intended to be used therefor.

The fact that the legislature by eh. 88, Laws of 1911, changed the statute so as to expressly include “nitroglycerine or other explosive” does not militate, necessarily, against an explosive in connection with a fuse and detonating cap being, in a proper sense, a machine, tool, or'implement, within the legislative meaning. It is not infrequent that the legislature makes a law, in reasonably plain terms, as one would commonly consider the language used, and, later, because of attempts to attribute to the words thereof a narrow technical meaning, minimizing or defeating the purpose, such purpose is re-expressed with intent to render it so unmistakable as to leave no possible room for failure to comprehend it.

Counsel for the accused indulges in the idea that the terms in question will admit of a construction sufficiently narrow as to exclude therefrom the articles in question, either singly or in combination, and relies upon the rule, often referred to, and applied in proper cases, that laws of a penal character are to be strictly construed. The mistake is often made of supposing that to be a rule of general or universal application; but such is not the case. No rule of construction has any office to perforin until obscurity of meaning is discovered. Where words, viewed in the abstract, will admit of two or more meanings, but the particular one intended by the lawmaking power is plain, to resort' to construction for the purpose of naiTowing the scope of the words, is entirely outside of the judicial field.

So construction must wait upon need for construction, and then sensible construction should be applied. That requires, when the intention of the legislature is obvious, such reading of language within the scope of its meaning as to give intended vitality to such language. Sometimes a strict and sometimes a liberal construction is required, even in respect to a penal law, because the dominating purpose of all construction is to carry out the legislative purpose.

Here it is manifest that the legislature intended to make the possession of any physical instrumentality, designed and intended to be used for the criminal purpose mentioned in the statute, an offense. So words were used to accomplish that purpose. Those words then should be read with that' purpose in view. If when so read they are plain, — there is no need for construction. If then not plain, they should be read sensibly; that is, reasonably so as to accomplish the legislative purpose if a fair meaning of the words will permit of it. If the purpose is uncertain and the words to express it might mean one thing or another, according to the intent with which they were used, then they should be read, ordinarily, so as to minimize rather than extend their penal character. These principles are so well understood that they may well be stated without reference to authorities. They are basicly elementary in the law.

To repeat, the purpose here being plain, the meaning of “machine, tool or implement” is unambiguous. Tools in the broad sense include implements in general, or objects used to perform a physical operation, when plied or directed by band and are movable, to accomplish such operation, as distinguished from a machine operated by some motive power other than that of the hand. A machine is a combination of parts by which, when motive power is supplied, it may be transmitted and, directly, or by relation to another physical instrumentality, produce some physical result. The three terms “tool, implement or machine” are comprehensive enough to include substantially all physical instrumentalities, by which, through human. interference, physical results may be accomplished.

In this case they were all the parts of a powerful instrumentality, appropriate to accomplish the destruction of any ordinary hindrance to access to “any building, room, vault, safe or other depository” of property. The fact that the parts were not actually in combination when found in the possession of the accused is unimportant. If, in such a case, one has in his possession, the parts of a machine which can easily be put in connection for the production of a particular physical result, the mere fact that, for convenience, or personal safety, or otherwise, they are kept out of connection, waiting upon an occasion for combining them, would not take from their character as a “tool, implement or machine,” and so render the person immune from the consequences of violating the statute.

It follows from the foregoing that the question submitted must be answered in the affirmative and the cause be remanded for further proceedings according to law.

By the Court. — So ordered.