13 Mont. 116 | Mont. | 1893
On the twelfth day of November, 1892, the county attorney of Park County filed in the court below the following information against the respondent, omitting the caption and formal parts: “ In the name and by the authority of the State of Montana, I, Allen R. Joy, county attorney in and for the county of Park, in the State of Montana, who prosecutes for and on behalf of said state, upon information, in the district court of said district, sitting in and for the said county
This prosecution was instituted and conducted under section 93, chapter 6, division 5, of the Compiled Laws, and is as fol-follows: “If any bailee of any money, goods, or property shall convert the same to his own use, with intent to steal the same, he shall be guilty of grand or petit larceny,' according to the amount of the property or value of the goods, chattels, or property so converted, in the same manner as if the original taking had been felonious; and, on conviction thereof, shall be punished accordingly.” The appellant claims that, under the foregoing statute, the respondent could be tried, convicted, and punished as under section 78 of the same chapter, which makes
Now, then, the question for this court to determine is whether a person tried and convicted under section 93, chapter 6, division 5, of the Compiled Laws, who, being the bailee of a mare, converts her to his own use, with intent to steal, the animal being of a less value than fifty dollars, can be punished as provided under section 78, chapter 6, of the Compiled Laws, which makes the felonious stealing of such animal, of whatever value, grand larceny. The value of the animal alleged to have been converted in this case is stated in the information to be forty dollars. To so hold would require this court to so construe said section 93 to mean that the. bailee of any mare, gelding, colt, cow, calf, etc., of whatever value, is guilty of grand larceny, as provided in said section 78. To so hold we must either construe a word into said section 93, such as “nature” or “character,” and to hold such words as meaning the same as the words “amount” or “value” of the property converted; or else we would have to hold that said section 93, with the words “according to the amount of money or value of the goods,
In Endlich on the Interpretation of Statutes (§ 329) we find this doctrine declared: “To determine that a case is within the intention of a statute, its language must authorize the court to say so; but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions, so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated. In this characteristic, the difference between liberal and strict constructions is clearly presented. Whilst the letter of a remedial statute may be extended to cases clearly within the same reason and within the mischief the act was designed to cure, unless such construction does violence to the language, a consideration of the old law, the mischief, and the remedy, though proper in the construction of criminal as well as other statutes, is not in itself enough to bring a case within the operation of the former class of statutes. Their language, properly given its full meaning, must, at least by that meaning, expressly include the case; and in ascertaining that meaning the court cannot go beyond the plain meaning of the words and phraseology employed, in search of an intention not certainly imp-died in them. In other words, whilst a case may come within the purview of a remedial statute, unless its language, properly construed, excludes it, it is excluded from the reach of a criminal statute, unless the language includes it. Unless the proper meaning of the language of the statute brings a case within its letter, the rule of strict construction forbids the court to create a crime or penalty by construction, and requires it to avoid the same by construction; and, although the court may be unable to conceive any reason why the case in question should have been omitted, and considers it highly improbable that an omission was intended, it is not at liberty to extend the enactment to cases not included within the clear and obvious import of the language.” And in section 330 the same author
In United States v. Wiliberger, 5 Wheat. 76, Marshall, C. J., delivering the opinion of the court, says: “The rule that penal laws are to be construed strictly is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial, department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. It is said that, notwithstanding this rule, the intention of the lawmaker must govern in the construction of penal as well as other statutes. This is true. But this is not a new independent rule, which subverts the old. It is a modification of the ancient maxim, and amounts to this: that, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a ease which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would
In Western Union Tel. Co. v. Axtell, 69 Ind. 199, the court say: “A court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and necessary meaning of the act creating it.” These authorities, and those that might be multiplied, simply but strongly, enunciate the elementary doctrine that penal statutes must be strictly construed.
We are of the opinion that under no construction of which section 93 is susceptible could the respondent have been tried thereunder, on the information alleging the value of the mare converted to be forty dollars, and convicted of grand larceny, and punished therefor as under section 78. If the legislature desire to punish bailees of domestic animals mentioned in section 78, chapter 6, of the Compiled Laws, who convert the same with intent to steal, and treat such conversion as grand larceny, as if the original taking had been felonious, then section 93,. chapter 6, division 4, of the Compiled Laws, should be amended by inserting such qualifying words as “nature” or “character” of property, so as to make the offense and punishment the same under both of said sections, as is found to be the case in similar statutes in Missouri and other states. From this view of the case, it is apparent that the lower court had no original jurisdiction to try this cause. The judgment of the lower court is therefore affirmed.
Affirmed.