SHERWOOD and BURGESS, JJ., concur.

STATE v. KAVANAUGH. V. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

SEDUCTION

STATUTORY OFFENSE - EVIDENCE-
TIME OF TRIAL.

1. Evidence that defendant's sister-in-law, an orphan child, was brought to defendant's house by another brother-in-law, at whose house she had been living, to remain while his wife was confined, shows that the child was "confided" to defendant's "care and protection" (Rev. St. 1889, § 3487), so as to warrant his conviction for defiling her.

2. Evidence that defendant committed an abortion on the child is admissible.

3. The failure to notify defendant of the calling of the special term at which he was tried, as required by statute, is not ground for reversal, defendant having made no objection to proceeding with the trial.

Appeal from circuit court, Harrison county; Paris C. Stepp, Judge.

Edward Kavanaugh was convicted of a crime, and appeals. Affirmed.

Sallee & Goodman, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

GANTT, P. J. The defendant was indicted in the Harrison circuit court at the May term, 1893, for defiling his sister-in-law, a young girl 15 years old, and was convicted at a special term of said court, in July, 1894, from which he appeals. The facts are few, The girl's father and mother were dead, and her estate was so meager that her guardian obtained homes for her where she could earn her living by doing part of the household work. When she was not thus employed, she made her home with her two brothers-inlaw, William McGowan and the defendant, Kavanaugh. Her guardian, Mr. H. B. Alden, testified that defendant told him the girls (meaning the prosecutrix and another younger sister) were both welcome to come and see his (defendant's) wife whenever they wanted to, and that he understood the prosecutrix was making her home with defendant when not employed. Mr. McGowan and his wife testified that the two girls were staying with them until the 14th of December, 1892. On that day. Mrs. McGowan was confined, and Mr. McGowan took the two girls to defendant's house, to stay during her confinement, and got the defendant's wife to go home with him to attend his wife. During the night of December 14th the defendant took the prosecutrix from her bed, and carried her to his own, and had carnal connection with her. Subsequently he had intercourse with her at intervals during the ensuing four or five months, when she was visiting in his house. v.33s.w.no.1-3

medicines to her, and used a catheter to produce an abortion. She helped do the housework while she was at defendant's house.

Various errors are assigned but they are all subordinate to the question whether the foregoing facts constitute such a confiding of the girl to defendant's care and protection as to bring the case within the letter and spirit of section 3487, which provides that, "if any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided shall defile her by carnally knowing her while she remains in his care, custody or employment," he shall be guilty of a felony. This section has been before this court for construction quite often. The section is nearly coeval with the state. In Rev. St. 1855, art. 8, § 9 (the act concerning crimes and punishments), it appears in these words: "If any guardian of any white female under the age of eighteen years, or of any other person to whose care or protection any such female shall have been confided, shall defile ished," etc. That section was construed by her by carnally knowing her he shall be punthis court in State v. Acuff, 6 Mo. 54, and it was held that the statute included not only guardians, but all other persons to whose care or protection any such female shall have been confided, and the word "of," following the word "or," preceding the words "any other person," must be rejected to render the section intelligible; Judge Tompkins saying: "Surely there can be no reason why it is not as criminal and as infamous in several other persons to violate such a trust as it is for a guardian to do it." The statute was afterwards amended by striking out the word "white," and as thus amended (1 Wag. St. p. 500, § 9) came before this court for construction again in State v. Arnold, 55 Mo. 90, and, without noticing or overruling State v. Acuff, it was held that where the married sister of a girl under 18 years of age requested her father to let the girl go and help her husband plant corn for a day, and the girl went, and during the day the husband defiled her, it was not such a confiding of her to his care or protection as the statute contemplated; that the person to whom she was confided must either be her guardian or stand in some attitude in which a peculiar or confidential trust was reposed. In State v. Woolaver, 77 Mo. 103, the section again came under review. In that case the evidence simply showed that the defendant was the stepfather of the prosecutrix, Anne Murphy, and that she lived with him, and during the time she made her home with his family he defiled her. There was no other evidence of confiding her to his care. This court affirmed a conviction in the case, and assumed without discussion that the stepdaughter was confided to the care and protection of the defendant in that case under those circumstances. In State v. Young, 99 Mo. 284, 12 S. W. 642, the prosecutrix was a

girl of 16 years. A sister of the defendant's A sister of the defendant's wife employed her to go to defendant's house to do kitchen work. The father of the girl saw defendant several weeks after the girl went to work, and told him she was not strong, and not to work her too hard; to which he answered she would be treated just like one of the family. It was said by this court that the relation thus assumed by the defendant was akin to that of a natural guardian, and the conviction was sustained. In that case this court cited with evident approval State v. Jones, 16 Kan. 608, which arose under a statute the same as ours prior to its amendment in the Revision of 1879. In State v. Jones, supra, the defendant took the female home with him, ostensibly for his wife to see whether she would employ her as a servant. When he and the girl reached his house, his wife was gone, and the girl remained that night. He slept with her that night, and defiled her, and took her home the next day. The supreme court of Kansas said: "We think that the trust reposed in the defendant by the father and mother of the girl in confiding her to his care for the purpose that he might take her to his home so that his wife could employ her as a hired girl in his own family was such a trust as is fairly contemplated by the statute. It was very much like placing the girl in the defendant's family, and reposing the confidence of her care and protection in the defendant himself as the head of the family." In State v. Terry, 106 Mo. 209, 17 S. W. 288, this division held that the employment of a female under 18 years of age as a domestic servant in the family of defendant created such a confiding to his care or protection as to bring it within the statute, and that it was not necessary that the contract or confiding should be by the intervention of a third person; Thomas, J., saying, "The question is not how the relation was formed, but did it in fact exist?" In State v. Sibley (Mo.) 31 S. W. 1033, the majority of this division concurred in holding that the relation of trust was created by a stepdaughter living in her stepfather's family as a recognized member thereof, without further proof of confiding her to his care or protection. To that ruling we still adhere. The doctrine established by the great weight of authority is that, while a stepfather is not bound to receive his stepchildren into his family, and provide for them, yet, if he does receive them, and holds them out to the world as members of his family, he stands in loco parentis, and incurs the same liability with respect to them as he is under to his own children, and, this relation being established, the reciprocal rights and duties attach. They are under his protection. Academy v. Bobb, 52 Mo. 357; Smith v. Rogers, 24 Kan. 140. And so it has been held by the court of last resort in our sister state of Texas that a quasi parental relation may be established by a minor sister living with her brother, and in such a case the right of correction as well as

protection flows from the assumed relation. Snowden v. State, 12 Tex. App. 105. So this quasi relation may exist between the child and some person other than the stepfather or near relative, and with similar legal consequences reciprocally. Schouler, Dom. Rel. (5th Ed.) § 273.

With these principles in view, we hold that the prosecutrix, under the facts of this case, was confided to the care and protection of her brother-in-law, the defendant; that it was not essential to show a specific verbal confiding of her to his care or protection by express agreement with her guardian. While the statute requires that she should have been confided to his care or protection, it nowhere indicates that the confiding shall be evidenced by an express arrangement. We think when she was taken to his house by her brother-inlaw to stay during her sister's confinement, and was received by him into his home by the tacit and clearly implied assent of her lawful guardian, and left in his charge as the head of his family, she was confided to his care within the contemplation both of the letter and spirit of the statute. This trust was evidenced just as the great mass of human transactions are, to wit, by the acts of the parties. In all such cases the parties are presumed to have made those stipulations which as honest, fair, and just men they ought to have made. From the conduct, situation, and relation of the parties, we think there was sufficient evidence to authorize the jury to find the girl was confided to the care and protection of defendant. The circumstances of her being taken to his house, the relation she bore to him, her tender age, are susceptible of no other reasonable interpretation than that, while she remained under his roof, she was confided by her sister and brother-in-law, McGowan, to his care and protection. It was her duty to conform to the regulations of his family and his plain duty to afford her protection. If necessary, we would say he bore a peculiar relation of trust towards her. We are not unmindful that men are not to be made subject to criminal laws by implication, and that only those transactions are covered by criminal statute which fall within both their spirit and letter; but we are disposed to so construe this statute as to promote the purpose and object of the legislature by ascribing that meaning to its words which, in our opinion, best harmonizes with the context, and we do not violate the rule of strict construction by giving to the words of the statute their full meaning, and thus effectuate what we believe was the intention of the legislature in adopting them. U. S. v. Hartwell, 6 Wall. 385.

2. There was no error in permitting the prosecutrix to testify that defendant gave her medicines and used a catheter to produce an abortion. It was evidence tending directly to show he was the cause of the mischief, and it was not inadmissible because it tended to prove him guilty of another offense. State

3. The contention that the court was without jurisdiction because defendant was not notified, as required by statute, of the calling of a special term, is not tenable. A failure to notify defendant might have afforded him good ground for a continuance, but there is nothing in the statute that makes the jurisdiction of the court dependent upon that notice, or attaches any such consequence to a failure to give it. At most it is directory. No objection was made to proceeding with the trial, no effort made to obtain the 10-days time, and no exception saved, and no possible injury has been suggested as resulting from the failure to give the notice. The statute is as beneficial to defendant as the state. It insures him that speedy public trial guarantied by the constitution.

4. There was no error in the instructions. They were based upon the evidence, and did not assume any controverted fact in the case. The judgment is affirmed.

BURGESS, J., concurs. SHERWOOD, J., does not concur.

1. The trial court cannot extend the time granted a party to file his bill of exceptions, after it has expired.

2. An indictment based on Rev. St. 1889, § 3526, which makes it burglary to break and enter any building "within the curtilage of a dwelling house," is fatally defective if it fails to contain the descriptive words quoted.

3. "Other building," as used in Rev. St. 1889, § 3526, making it burglary for any person to break and enter any "shop, store, booth, tent, warehouse or other building," etc., means a building of like kind with those enumerated, and does not, therefore, embrace a "chicken house building." State v. Hecox, 83 Mo. 532, overruled. Gantt, P. J., dissenting.

4. Fatal defects in an indictment may be considered, though raised for the first time on appeal.

5. Under Rev. St. 1889, § 3944, providing that every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory before the fact, shall, on conviction, be adjudged guilty of the offense in the same degree as a principal in the first degree, 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.

6. Since an affidavit for change of venue can only be preserved in a bill of exceptions, the sufficiency of such affidavit cannot be considered on appeal, in the absence of such bill.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Edward Schuchmann was convicted of the crime of burglary in the second degree, and appeals. Reversed.

Zach. J. Mitchell, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

SHERWOOD, J. 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: "That Joseph Turner and Ruben Troller, on the second day of July, A. D. one thousand eight hundred and ninetythree, 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 valuble 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 Schuchmann 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. Atty. 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.

1. On the 16th of March the time granted defendant in which to file his bill of exceptions having expired,, the trial judge was powerless, on the 19th of March, to extend, by his order, the time for filing the bill of exceptions, as we have over and over again decided.

2. The section of the statute upon which the foregoing indictment is framed is as follows: "Every person who shall be convicted of 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, shall, on conviction be adjudged guilty of burglary in the second degree." Rev. St. 1889, § 3526. Under this section, the indictment, if based on the first clause thereof, must charge that the

building in which the burglary was committed was "within 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, "when 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 that class." Broom, Leg. Max. (6th Ed.) 625. Here the term "chicken house building" is not of the same kind or class as those previously mentioned, and, therefore, cannot fall within the definition of the term "other building." State v. Bryant, 90 Mo. 534, 2 S. W. 836, and cases cited. See, also, State v. Seibert (Mo. Sup.) 27 S. W., loc. cit. 626. The indictment is, therefore, bad, under either clause of the section. 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 do 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. Bish. St. Crimes (2d Ed.) §§ 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, 12 S. W.,516, 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 Rex v. Inhabitants of Whitnash, 7 Barn. & C. 596, St. 29 Car. II. c 7, § 1, provided "that no tradesman, artificer, workman, laborer, or other person whatsoever" should exercise his ordinary calling on the Lord's day. And thereupon it was ruled that the words "other persoa" did not include a farmer, because not

of like denomination with those specifically mentioned; Bailey, J., remarking that, if all persons were meant, there was no need of the specific enumeration. So, in Ex parte Hill, 3 Car. & 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 "bull" was not included under the words "other cattle," as used in a statute which made it indictable for any person to "wantonly or cruelly beat, abuse and ill-treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep or other cattle," the court saying: "Horse, mare, gelding, are one class; ox, cow, heifer and steer are another; and * * * *the bull is not included in this act." Sandiman v. Breach, 7 Barn. & 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 Tenterden did not approve this contention, and, in delivering the unanimous opinion of the court of queen's bench, said: "It was objected that the 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. I. c. 1, and 29 Car. II. c. 7) upon which the objection was founded, we are of the opinion that this case does not come within them. * * * By the first of these, 3 Car. I. c. 1, it was enacted that 'no carrier, with any horse, nor wagonman, 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 29 Car. II. c. 7, that 'no tradesman, artificer, workman, laborer, or other person or persons, shall do or exercise any worldly labor, 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 3 Car. I. c. 1, carriers of a certain description are mentioned, and that in 29 Car. II. c. 7, drovers, horse-coursers, wagoners, and travelers of certain descriptions are specifically mentioned, we think that the words, 'other person or persons,' cannot 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 City of 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, patent-right dealers, inspectors and gaugers, stock-yard proprietors, examiners of titles, conveyancers, mercantile agents, insurance companies, banking or other corporations or institutions, street-railroad cars, hackney carriages, omnibuses, carts, drays and all other vehicles, and all other business, trades, avocations or professions whatever." And it was held, following the ruling in the case just previously cited, that the city had no power to impose a license tax on a lawyer, notwithstanding the charter, as quoted, concludes with the words "all other business, trades, avocations or professions whatever." The authority of Laughlin's Case was recognized in City of St. Louis v. Bowler, 94 Mo., loc. cit. 633, 7 S. W. 434, and has been uniformly followed by the courts of appeals. Knox City v. Thompson, 19 Mo. App. 523; State v. Taaffe, 25 Mo. App. 567; City of Hannibal v. Price, 29 Mo. App. 280; City of St. Joseph v. Porter, Id. 605. The only reason why we did not make the same ruling in Bowler'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 character." This quotation shows the pronounced difference between, and the distinguishing features of, the two cases, when thus contrasted.

or

Where landlords were authorized by statute to distrain 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. Clark 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 learning," and upon this it was ruled that, inasmuch as all those enumerated were corporations, that, therefore, the general words, "or other seminary of learning," required that such institution should also be incorporated in order to have the benefit of the exemption. Chegaray v. Mayor, etc., of New York, 13 N. Y. 220. 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 "what 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, 6 N. E. 469. 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," or "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. Governed by the principle under discussion, it was ruled, in Michigan, that a statute which gave "every wife, child, parent, guardian, husband or other person" a right of action against a liquor seller for injury done to the plaintiff by reason of the intoxication of any person, did not give the intoxicated person himself a right of action, and that he was not within the statute. Brooks v. Cook, 44 Mich. 617, 7 N. W. 216. 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 insurance, 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 or misfortune," yet the specific words of the policy, which preceded