54 So. 854 | Miss. | 1912
delivered the opinion of the court.
An affidavit was made against appellee in a justice of the peace court, in which it was charged that he “did unlawfully exhibit a deadly weapon, to wit, a pocketknife, in the presence- of three or more persons, in a rude, angry, or threatening manner, not in his necessary defense.” He was convicted, and appealed to the circuit court. He filed a demurrer to the affidavit, which the court sustained.
An objection to the affidavit is that a pocketknife is not a deadly weapon within the meaning of the statute. It is well known that a pocketknife, in many cases, is deadly in its effect. In the case of State v. Sims, 80 Miss. 381, 31 So. 907, a brick was decided to be a deadly weapon. In delivering the opinion of the court in that case, Terrell, J., said: “The most usual cases of felonious assaults that we hear of are those made by pocketknives, which are not mentioned in section 1026 of the Code, and it has never been thought that such indictments are defective- because pocketknives are not described as deadly weapons by legislative authority.”
It is contended in the demurrer that the word “such,” in the beginning of section 1110 of the Code of 1906, limits the persons to be charged under this section to those. classes of persons mentioned in sections 1109, 1108,1107, and 1106 of the Code of 1906. It will be noted that the title to section 1110 is as follows: “The Same; Exhibiting in Ende, Angry, or Threatening Manner, etc.” — and that the first part of .that section reads as follows:. “If any such person, having or carrying any dirk, dirk knife, sword, sword cane, or any deadly weapon, or other weapon the carrying of which concealed is prohibited, shall, in the presence of three or more persons, exhibit the same in a- rude, angry, or threatening manner, not in necessary self-defense, or shall in any manner unlawfully use the same in any fight or quarrel, the person so offending, upbn conviction thereof, shall be fined in a sum not exceeding five hundred dollars or be imprisoned in the county jail not exceeding three months, or both.” Section 1103, Code of 1906, begins the subject of deadly weapons, and it corresponds to section 1026 of the Code of 1892. Section 1104 is a new law, being a new Code section, and first in the Code of 1906. Its subject is “Weapons Forfeited.” Section 1105 corresponds to section 1027 of the Code of 1892, and is under the title: “The same; Not Applicable to Certain Persons.” Section 1106 is a new Code section, under the subject: “Dealers to Keep Eecord of Cartridges and Weapons Sold.” Section 1107 (section 1028, Code 1892) is under the subject: “The Same; Cartridges Not Sold to Infant or Drunk Person.” Section 1108 (section 1029, Code 1892) is under the subject: “The Same; Father Not to Suffer Infant Son to Have or Carry.” Section 1109 (section 1030, Code 1892) is under the subject: “The Same;College Students Not to Have, etc.”
A careful review of the arrangement of these sections and the statement of their subjects in comparison with
It is true that the controlling purpose in construing legislative acts is to get at the intent and purpose of the legislature. In the present case, why should the legislature have intended to limit the persons subject to prosecution for this offense to those named in the four preceding sections? For instance, to such as college professions? A reading of this section, including the word “such,” and limiting the persons who are liable for .prosecution thereunder as contended would make the law practically senseless, and in fact, nullify it. It is the rule that a penal statute should be strictly construed; but certainly we must get at the. true spirit of the statute, and should not adopt a literal reading of the same, if it has the effect of making the law senseless and useless. If, on the other hand, the insertion of the word
It is stated in the case of Bryant v. United States, 105 Fed. 941, 45 C. C. A. 145: “While it is true that penal statutes should be strictly construed, it is undoubtedly the duty of the courts to look to the mischief intended to be prevented, and to take into consideration the character of the remedy proposed to be applied, in doing which the mere letter must yield to the manifest spirit, and give to the provisions that measure of restriction or expansion which a sound, reasonable reading of the whole requires of each particular.” In the case of Earhart v. State, 67 Miss. 325, 7 So. 347, It is decided as follows: “Where the literal reading of an act striking certain words out of a section of the Code renders the Code provision senseless, and it is evident that it was not intended to nullify the law, and that a clerical error was made in expunging too many words, a view being maintainable giving effect to the act and the section as amended, by striking out only a part of the words, it will be assumed, in order to carry out the manifest purpose of the legislature, that such error was made, and the act will be construed accordingly.”
We cannot in the present case follow the reasonings and conclusions of the court in the case of State v. Traylor, 100 Miss. 544, 56 So. 521. In his dissenting opinion in that case, Smith, J., states: “Criminal statutes must be strictly construed, and the courts have no power to add to or take from them, or, for that matter, to add to or take from any other statute; but this does not mean that such statutes are to be construed with such technical strictness as to defeat the purpose of ascertaining the true meaning thereof. The rule is universal, so far as I am aware, that the true meaning of statutes, when
We conclude that the word “such” was inserted in section 1110 of the Code of 1906, in the phrase “If any such person,” through some clerical mistake, and that it was manifestly the purpose of the legislature to make all persons subject to «prosecution for violation of the statute.
Demurrer overruled.