133 Mo. 111 | Mo. | 1896
Lead Opinion
DIVISION TWO.
On change of venue from St. Louis county circuit court, the defendant was tried in the Franklin circuit court upon an indictment, the material portions of which are as follows:
*115 • “That Joseph Turner and Ruben Troller on the .second day of July, A. D. one thousand eight hundred and ninety-three, at the county of St. Louis, in the state of Missouri, did then and there feloniously and burglariously break into and enter a certain chicken house building, the property then of William C. Price, by forcibly pushing and bursting open an outer window of the same, and with the intent thereby then and .there feloniously and burglariously to take, steal, and carry away certain property, consisting of divers live chickens and valuable things, which were then and there being kept and deposited in said building; ■ and then and there did unlawfully and burglariously take, steal, and carry away, from and out of said building of the said valuable things, the property then of the said William C. Price, divers live chickens in number and ■of value to these jurors unknown.
“And the jurors aforesaid upon their oath aforesaid, do further present and charge that before the said felonious burglary and larceny was committed as -aforesaid, one Edward Sehuchmann did in the said county and on the said day, unlawfully, feloniously, and burglariously advise, incite, procure, and aid the said persons,. Joseph Turner and Ruben Troller to commit the said crimes and felony, against the peace .and dignity of the state. R. Lee Mudd,
“Pros. Att’y of St. Louis Co., Mo.”
The trial resulted in the conviction of the defendant, his punishment being assessed at imprisonment in ■the penitentiary for the term of three years.
Under this section, the indictment, if based on the first clause thereof, must charge that the building in which the burglary was committed was £ ‘toithin the curtilage of the dwelling house.” Without,such averment the indictment would be fatally defective, because of not containing the descriptive words the statute contains.
If the indictment be based on the second clause of the section, then it is bad because the rule as to matters ejusdem generis applies — that good rule of construction which requires that “where a particular class * * * is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.” Broom, Leg. Mas. [6 Ed.]'*625.
Here the term “chicken house building” is not of the same kind or class as those previously mentioned, and therefore can not fall within the definition of the term “other buildings.” State v. Bryant, 90 Mo. 534, and cases cited. See, also, State ex rel. v. Seibert, 123 Mo. loc. cit. 438.
This view of the matter is not in accord with State v. Hecox, 83 Mo. 532, where a burglary in a “granary” was committed, and there was no allegation that it was within the curtilage; but for reasons already given, we d.o not regard that case as sound law and consequently will not follow it.
Moreover, the statute is both penal and criminal, and therefore to be strictly construed; construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor; that is, for their ease and exemption. No person is to be made subject to such statutes by implication, and when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused. Bishop, Stat. Cr. [2 Ed.], secs. 193, 194, 227.
The defects mentioned in the indictment, being fatal in their character, may be raised and considered for the first time in this court, and of our own motion. State v. Meyers, 99 Mo. loc. cit. 112, and cases cited.
When writing the above, I had supposed the doctrine so well settled in regard to the proper construction to be given to the meaning of general words which follow those which designate or create a particular class or classes of persons or things, that I thought it needless to do but little more than barely to refer to some of the authorities which announced the time-worn maxim, ejusdem generis. But it seems from recent suggestions that I erred in so thinking, and so I will refer to some “wise saws and modern instances” illustrating the hackneyed position heretofore taken.
Thus in Reg. v. Whitnash, 7 Barn. & C. 596, Stat. Car. II, chapter 7, section 1, provided, “that no trades
So in Ex Parte Hill, 3 C. & P. 225, under the common law rule that where general words follow particular and specific words, the former must be confined to things of the same kind, it was ruled that a “Util” was not included under the words “other cattle,” as used in a statute which made it indictable for any person to “wantonly and cruelly beat, abuse, or ill treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep, or other cattle,” the court saying: “Horse, mare, and gelding, are one class; ox, cow, heifer, and steer, are another class; and * * * the bull is not included in this act.”
Sandiman v. Breach, 7 B. & C. 96, was an action of assumpsit brought to recover the expense of hiring a postchaise, the defendant having failed to convey plaintiff in his stagecoach as he had contracted to do. For the defense it was contended that the contract was illegal, because it was to be performed on the Sabbath. Lord Tendekden did not approve this contention and in delivering the unanimous opinion of the court of queen’s bench said:
“It was objected thatthe plaintiff; in this case could not recover, because the contract, for the breach of which the action was brought, was to have been performed on the Sabbath day, and that it could not legally be performed on that day. But upon looking into the statutes (3 Car. 1, chap. 1, and 29 Car. 2, chap. 7), upon which the objection was founded, we are of opinión that this case does not come within*119 them. * * * By the first of these, the 3 Car. 1, chapter 1, it was enacted, that ‘no carrier with any horse, nor wagon-man with any wagon, nor cartman with any cart, nor wainman with any wain, nor drover with any cattle, shall by themselves, or any other, travel on the Lord’s day;’ and by the. 29 Car. 2, chapter?, that ‘no tradesman, artificer, workman, labourer, or other person or persons, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord’s day.’ It was contended, that under the words ‘other person or persons’ the drivers of stagecoaches are included. But where general words-follow particular ones, the rule is to construe them as applicable to persons ejusdem generis. Considering, then, that in the 3 Car. 1, chapter 1, carriers of a certain description are mentioned, and that in the 29 Car. 2, chapter 7, drovers, horse-coursers, wagoners, and travelers of certain descriptions, are specifically mentioned, we think that the words ‘other person or persons’ can not have been used in a sense large enough to include the owner and driver of a stagecoach.”
That case was approvingly cited and followed in St. Louis v. Laughlin, 49 Mo. 559, where a question arose as to whether a license tax could be imposed on the profession of a lawyer. The charter, under which the city authorities proceeded in imposing the tax, provided as follows: “The mayor and city council shall have power within the city, by ordinance not inconsistent with any law of this state, to license, tax, and regulate auctioneers, grocers, merchants, retailers, hotels, boarding houses, tenement houses, office buildings, •public halls, public grounds, concerts, photographers, artists, agents, porters, runners, drummers, public lecturers, public meetings and shows, real estate agents and brokers, horse and cattle dealers, beerhouses, patentright dealers, inspectors and gaugers, stockyard
The authority of Laughlin’s case was recognized in St. Louis v. Bowler, 94 Mo. loc. cit. 633, and has been uniformly followed by the courts of appeals. Knox City v. Thompson, 19 Mo. App. 523; State ex rel. v. Taaffe, 25 Mo. App. 567; Hannibal v. Price, 29 Mo. App. 280; St. Joseph v. Porter, Ibid. 605.
The only reason why we did not make the same ruling in Bolder’s case as in Laughlin’s, was that the charter had been amended, so that it had become much more comprehensive in its terms, the concluding words being: “All occupations, professions, and trades, not heretofore enumerated, of whatever name or character.” This quotation shows the pronounced difference beween, and the distinguishing features of, the two cases when thus contrasted.
Where landlords were authorized by statute to dis-train for rent, “all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing on the estates demised,” this was held not to include trees, shrubs, and plants growing in a nursery garden. Clarke v. Gaskarth, 8 Taunt. 431.
A statute exempted from taxation “every building erected for the use of a college, incorporated academy, or other seminary of learningand upon this it was ruled that inasmuch as all those enumerated were cor
In Illinois a railroad company was authorized by its charter “to purchase, hold, and use all such real estate and other property as may be necessary for the construction of its railway and stations, and other accommodations as may be necessary to accomplish the objects of its incorporation.” But the term “other accommodations,” was held not to include an elevator, though confessedly adding to the facilities for handling, storing, and shipping grain, and thereby enabling the railroad company to do a greater business; and among other reasons suggested by the court for this ruling it was said that “whatever is included in the expression, ‘other accommodations/ must be of the same class or kind as ‘railway and stations/ ” and then allusion is made to the well settled canon of construction, that a general description following a specific enumeration of objects or things, will be held to include only such as are of the same kind as those specifically enumerated. In re Swigert, 119 Ill. 83.
A statute of the state of Pennsylvania made it a crime for any “warehouseman, wharfinger, or other person,” to issue any vouchers for goods, etc. And upon this statute it was ruled, that being a penal statute it must be construed strictly, and that the words, “other persons” following the particular words, “warehouseman” and “wharfinger” must be adjudged to refer to other persons ejusdem generis, viz.: those who are engaged in a like business, or who conduct the business of warehouseman or wharfinger with some other business or pursuit, and that no one unless brought within the plain terms of the act, could be held guilty thereunder. Bucher v. Com., 103 Pa. St. 528.
An insurance case in England, decided so late as 1887, in the house of lords, affords forcible illustration of the doctrine in hand. A steamer was insured by a policy on the ship and her machinery, including the donkey engine. The policy covered perils of the sea, specially naming many, and then continued: “and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this imwrance, or any part thereof.” For the purposes of navigation the donkey engine was being used in pumping water into the main boilers, when, owing to a valve being closed which ought to-have been kept open, water was forced into and split open the air chamber of the donkey pump. The closing of the valve was either accidental or due to the negligence of an engineer, and was not due to ordinary wear and tear. It was held that the injury was not. covered by the policy, as it was not a peril of the sea; and although it was undoubtedly “a loss ór misfortune yet the specific words of the policy which preceded its. general language, it was said, restricted it to the same-genus as the specific words. In the course of his judgment the chancellor, Halsbuby, said: “If understood in their widest sense the words are wide enough to-include it [the injury]; but two rules of construction now fairly established as part of our law may be considered as limiting those words. One is that words, however general, may be limited with respect to the-
Of course if we “take the wings of the morning and fly unto the uttermost parts of the earth” we may industriously ferret out some sporadic cases contrary to the well settled rule here announced, but I do not believe we should do this in entire disregard of our own decisions, and' of the overwhelmning weight of authority.
And, in this connection, we should not be unmindful of the fact that criminal statutes are to be strictly construed. Says Bishop: “Such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered by them which are within both their spirit and their letter.” Stat. Crim. [2 Ed.], secs. 194, 218, 220, 227, 119, 193.
Elsewhere the learned author observes: “As stated by Hawkins, the doctrine is: ‘No parallel case, which comes within the same mischief, shall be construed to be within the purview of it [the statute], unless it can be brought within the meaning of the words.’ In slightly different language, though a case of this sort is fully within the mischief to be remedied, and is even of the same class and within the same reason as other cases enumerated in the statute, con
In Daggett v. State, 4 Conn. 60, Hosmer, C. J., when speaking of the strictness which should characterize the construction of such statutes, aptly remarks: “In extension of the letter of the law, nothing may be assumed by implication; ' nor may the mischief intended to be prevented or redressed, as against the offender, be regarded in its construction. It was the object of the principle to establish a certain rule, by conformity to which mankind should be safe, and the discretion of the judge limited. How much this must contribute to the security and enjoyment of the citizen, is too palpably obvious to require illustration. Upon the before mentioned principle, it has been adjudged, that an act made to punish the person who stole a cotv, is not applicable to him who steals a heifer; Richard CooTce’s case, Leach’s C. L. 109, and a law prohibiting the transportation of provisions in any wagon, or otherwise, to an enemy, is not infringed by driving fat oxen on the leg. The United States v. Sheldon, 2 Wheat. 119. That the mischiefs at which these laws were aimed, existed, in both the cases alluded to, is past a question; but the acts prosecuted not being within the words of the legislature,* were considered as not within the prohibitions of the laws. I will only add that the moment the strict construction of penal laws is abandoned, the difference between their interpretation, and that of remedial laws, must terminate, as there is no middle ground between them.”
In United States v. Wiltberger, 5 Wheat. 76, Chief Justice Marshall said: “It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated
Guided by these considerations, I do not regard the term " chicken house building” as one recognized by the statute under discussion, and therefore regard the indictment fatally defective.
Under this section it has been contended that the words “may be,” etc., mean “shall,” but we do not look at the point in that way. The point remains as it was at common law; the indictment may either allege the matter according to the fact or charge both the principal and the accessory as principals in the first degree. State v. Anderson, 89 Mo. loc. cit. 333.
Because of the defect in the indictment the judgment should be reversed and the cause remanded.
in bano. .
Pee Cubiam. — The foregoing opinion handed down in division number two is adopted as the opinion
The judgment of the circuit court will therefore be reversed and the cause remanded.
Dissenting Opinion
(dissenting). — That the principle of ejusdem generis is frequently .applied in the construction of statutes both civil and criminal I readily concede, and it is as often held that penal laws must be strictly construed in favor of the accused and against the state. But after all that has been said these canons of construction have but one purpose and that is to enable the courts to ascertain the legislative intent. If the object and intention is plain there is nothing to construe.
In Ileydon’s case, 3 Coke’s Reports, 8, it was resolved by all the batons of the exchequer “that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st. What was the common law before the making of the act? 2nd. What was the' mischief and defect for which the common law did not provide? 3rd. What remedy the parliament hath resolved and appointed to cure the disease of the common wealth? And, 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress .subtile inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro lono pullico.”
The courts of this country have uniformly agreed that they have no right to extend a criminal statute to
A general word following one or more less general terms ejusdem generis takes its meaning from them and ordinarily is presumed to be restricted to the same genus as those words. The reports abound in illustrations of the application of this rule of construction; as, where a statute authorized distress for rent of “corn, grass, or other product” growing on the leased premises, only products similar to corn and grass could be ■distrained, and not young trees which were also products of the land but of distinct character. Clarke v. Gaskarth, 8 Taunt. 431.
And in an act making it penal for any “warehouseman, wharfinger, or other person, to issue any voucher for goods, wares, etc., unless he shall have actually received them in store or to ship or transfer such goods, etc., without the return of the receipt, the phrase ‘other person,’ is to be construed ejusdem generis with warehouseman and wharfinger and .does not include one who received grain on storage with the' option of becoming its purchaser and without compensation if he shall not exercise that option and who gave a receipt not intended to be negotiable.”
Another rule of construction often resorted to and growing out of the association of words in an act of the legislature is that “the inferior does not include the superior.” Thus where duties were imposed under the general head of “metals,” upon copper, brass, pewter, and tin and on all other metals not enumerated, it was held to include only metals inferior to those named and
But along with these rules of construction which have descended to us from the sages of the law has come at all times the admonition that the plain intention of the law must not be sacrificed by any rule of construction. As said by the supreme court of the United States “when the words are general and include various classes of persons there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all. The words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.”
In Regina v. Payne, L. R. 1 Cr. Cas. Res. 26, the prison act, 1865, which forbade the 'conveyance into’ any prison, with intent to facilitate the escape of. a prisoner, of any mash, dress, or other disguise, or of any letter, or any other article or thing, it was unanimously ruled by the court through C. B. Pollock that a crowbar was included under the words “or any other article or thing,” though the rule of ejusclem generis was pressed by counsel in argument.
In Woodworth v. State, 26 Ohio St. 196, it was held that “a supervisor of roads” was an officer within the meaning of a statute which provided, “that if any person shall abuse any judge or justice of the peace, resist or abuse any sheriff, constable, or other officer in the execution of his office, the person so offending shall be punished,” etc. The principle of ejusclem generis was invoked, and Chief Justice McIlvaine said: “It must be remarked that the rule of construction referred to above can be used only as an aid in ascertaining the legislative intent, and not for the purpose of confining the operation of a statute within limits narrower than those intended by the lawmaker.
In Shillito v. Thompson, 1 Q. B. Div. 12, a prosecution was had under a by-law of Doncaster borough, which provided that if any butcher or dealer in meat, or any fishmonger, poulterer, or other person, should expose on his premises, or have in his possession with intent to sell or expose to sale any meat, fish, poultry, , or other victuals or provisions, unfit for food of man, he should be subject to penalty. The' defendant, a grocer, exposed for sale on his premises cheese which was unfit for food. He was convicted and on his appeal
In State v. Solomon, 33 Ind. 450, a statute for the protection of religious meetings provided that if any person should erect, bring, keep, contrive, or maintain any booth, tent, wagon, huckster shop, or other place for the sale of intoxicating liquors, cider, beer, or other drinks or for the sale of any other article whatever, etc., he should be punished, etc. It was shown the defendant sold cigars, tobacco, candies, peaches, and melons within the forbidden territory of a camp meeting. On appeal the supreme court of Indiana said: “The evidence * * * clearly brings the case within the letter and spirit of the amendment of 1865, above referred to. * * *' It is true that the articles sold .and for sale are not those that are specifically named in the statute, but they are ‘other articles’ spoken of in the law.”
So that while it is often safe to apply the maxim noscitur d sociis,” in the interpretation of the words of a statute, the courts look at the statute and every word of it, and statutes in pari materia, and consider the reason of the statute to ascertain its meaning, and are not bound by any one rule of construction, however useful it may have proved.
Applying the tests in Key don’s case, supra, we find burglary at common law as defined by Lord Coke was «committed when one in the nighttime broke and entered into a mansion house of another with intent to kill some reasonable creature or to commit some other felony within the same, whether his felonious intent was executed or not. 3 Inst. 63; 1 Hale, P. C. 549; 2 Russell on Crimes, 1.
By statute in most, if not all, of the states the common law has been modified so that the offense can
Burglary in the second degree by our statute, section 3526, Revised Statutes, 1889, is defined to be the “breaking and entering: First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, or ■any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise, or ■other valuable thing kept or deposited, with intent to ■steal or commit any felony therein.”
I think that it is perfectly plain that the lawmakers intended to throw the protection of this statute over any “building., in which there should be at the time some human being, or any goods, wares or merchandise, or other valuable thing kept or deposited, ’ and that the characterization of the building was only limited or restricted by the modifying clauses, to wit, "in which there should he at the time some human being or merchandise or valuable thing kept or deposited,” and not by the enumeration of other buildings by their usual designation. It seems too plain for construction that this was the obvious intention, and that “the chicken housebuilding” in this indictment falls not only within the letter but the spirit of the statute as well.
I do not think ejusdem generis can apply to a con
It seems to me evident that it was the intention of the lawmakers to punish the felonious breaking and entering into any building in which goods and merchandise or other valuable things were kept or deposited, it mattered not by what name such building was otherwise designated. The essential thing is that a human being must at the time be in the building, or goods, wares, merchandise, or other valuable thing must be kept or deposited in the building. These descriptive qualifying clauses are the connecting links between burglary and any building.
In Bethune v. State, 48 Gra. 505, the doctrine of ejusdem generis was invoked in a prosecution for burglary under a statute where the offense consisted in “breaking and entering into a dwelling, mansion, or storehouse, or other place of business of another where valuable goods, wares, etc., are contained or stored.” It was contended that unless the house was not a dwelling, mansion, or storehouse, it must be a place of business where the business carried on was similar to that which appertained to a storehouse, or the business
In United States v. Wiltberger, 5 Wheat. (U. S.) 76, loc. cit. 95, Chief Justice Marshall says: “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 tbe 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.”
Endlich on the Interpretation of Statutes, section 410, says: “The general object of the act, also, sometimes requires that the final generic word shall not be restricted in meaning by its predecessors. * * * Thus the 17 Geo. 3, chapter 56, which, after reciting that stolen materials used in certain manufactures were often concealed in the possession of persons who had received them with guilty knowledge, and that the discovery and conviction of the offenders was in consequence difficult, proceeded to authorize justices to issue search warrants for purloined materials suspected to be concealed ‘in any dwelling house, outhouse, yard, garden, or other place,’ was held to include, under, the last word, a warehouse which was a mile and a half from
Without further discussion, I hold the indictment sufficient and that the chicken house, in which were kept valuable fowls, was “a building” clearly within the letter and spirit of the statute. I concur in the first, third, and fourth paragraphs of the opinion of my learned brother, but respectfully dissent, for the foregoing reasons, from the second paragraph.
