its general language, it was said, restricted it to the same genus as the specific words. In the course of his judgment, the chancellor, Halsbury, 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 a part of our law, may be considered as limiting these words. One is that words, however general, may be limited with respect to the subjectmatter in relation to which they are used. The other is that general words may be restricted to the same genus as the specific words that precede them." To the like effect, see Hermance v. Board of Sup'rs, 71 N. Y. 481; People v. Railway Co., 84 N. Y. 565; People v. Richards, 108 N. Y. 137, 15 N. E. 371; Suth. St. Const. § 268 et seq.; State v. Stoller, 38 Iowa, loc. cit. 324, and cases cited; Bish. St. Crimes, § 245 et seq., and cases cited; State v. McCrum, 38 Minn. 154, 36 N. W. 102.

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 wellsettled rule here announced; but I do not believe we should do this, in entire disregard of our own decisions and of the overwhelming 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." St. Crimes (2d Ed.) §§ 119, 193, 194, 218, 220, 227. 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 reasons, as other cases enumerated in the statute, construction will not be permitted to bring it within the statute unless it is also within the statutory words." Id. § 220. 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 cow is not applicable to him who steals a heifer (Richard Cook's Case, Leach, 105), 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 (U. S. 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 U. S. 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 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 be unsafe to consider as precedents forming a general rule for other cases." 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.

3. Section 3944, Rev. St. 1889, provides that: "Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as a principal in the first degree." 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, 1 S. W. 135.

4. As to the affidavit for a change of venue, it cannot be noticed, since it could only have been preserved in a bill of exceptions, and there is none in this case. Because of the defect in the indictment, the judgment should be reversed, and the cause remanded.

BURGESS, J., concurs.

GANTT, P. J. (dissenting). That the principle of ejusdem generis is frequently ap

plied 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 are plain, there is nothing to construe. In Heydon's Case, 3 Coke, 8, it was resolved by all the barons 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: (1) What was the common law before the making of the act? (2) What was the mischief and defect for which the common law did not provide? (3) What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth. (4) The true reason of the remedy. And then the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle 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 bono publico.'" The courts of this country have uniformly agreed that they have no right to extend a criminal statute to cases out of its letter; but the question often arises, as in the case at bar, when the words are broad enough, but the question is, does the case in hand fall within the mischief of the statute? One reason assigned for investing the judges with the office of construing statutes is "that the lawmakers cannot possibly set down all cases in express terms." 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. Clark v. Gaskarth, 8 Taunt. 431. And 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 gives a receipt not intended to be negotiable. Another rule of construction,

A

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 not to fall on gold or silver, which are known as "precious metals." Casher v. Holmes, 2 Barn. & Adol. 592.

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 taker in such a sense, bent neither one way nor the other, as will best manifest the legislative intent." In Reg. v. Payne (1865-1872) L. R. 1 Cr. Cas. 27, the prison act of 1865, which forbade the conveyance into any prison, with intent to facilitate the escape of a prisoner, of any mask, dress, or other disguise, or of any letter, or any other article or thing, it was unanimously ruled by the court, through Pollock, C. B., that a crowbar was included under the words "or any other article or thing," though the rule of ejusdem 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. 1 Swan & C. St. p. 428, § 9. The principle of ejusdem generis was invoked, and Chief Justice McIlvaine said: "It must be remarked that the rule of construction referred to 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. It affords a mere suggestion to the judicial mind that, where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace those not within that class. The suggestion is one of common sense. Other rules of construction are, however, equally potent, especially the primary rule which suggests that the intent of the legislature is to be found in the ordinary meaning of the words of the statute. Another well-established principle is that even the rule requiring the strict construction of a penal statute, as against the prisoner, is

He

not violated by giving every word of the statute its full meaning, unless restrained by the context." After holding that the statute included a supervisor, under the phrase of "other officer," he proceeds to say: "This is the doctrine of the later cases generally, and especially those of American courts. It is not intended to ignore the rule which requires penal statutes, as against the prisoner, to be construed strictly, and in his favor liberally. But it does prevent a construction, as against him so strict, or in his favor so liberal, as to defeat the obvious intention of the legislature." See, also, Reg. v. Doubleday, 3 El. & El. 500. 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, shall 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 shall be subject to penalty. The defendThe defendant, a grocer, exposed for sale on his premises cheese which was unfit for food. was convicted, and on his appeal urged that "cheese was not ejusdem generis with meat and the other things mentioned in the bylaw," but the conviction was affirmed. In State v. Solomon, 33 Ind. 450, a statute for the protection of religious meetings provided that, if any person shall 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. 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: "It is true that the articles sold and for sale are not those specifically named in the statute, but they are 'other articles,' spoken of in the law. The evidence clearly brings the case within the letter and spirit of the amendment of 1865, above referred to." So that, while it is often safe to apply the maxim, "Noscitur a 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 Heydon'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 Russ. Crimes, 1. By statute, in most, if not all, of the states, the common law has been modified, so that the offense can now be committed in

buildings of almost every kind constructed by mankind. It is thus evident that the legislature had in view the punishment of a large class of offenders, prowlers without visible means of support, who were breaking into the storehouses and warehouses and unguarded buildings where valuable goods were kept and robbing them of their contents, and the remedy proposed was to make this offense burglary, though not included in the common-law definition of that crime, but mitigating the degree of the crime, and grading the punishment therefor. Burglary in the second degree by our statute (section 3526, Rev. St. 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; 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 be 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 house building," 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 construction of this section for another That principle applies only when the specific words are all of the same class or nature. When they are of different genera, the meaning of the general word is unaffected by its connection with them. The particular words, "shop," or "store," on the one hand, "booth," or "tent," on the other, and "warehouse," on still another, each exhausted whole classes, and each distinct from the other. Hence, "other building" cannot derive its color by association with any one of them, nor by a mingling of all, but stands as the representative of a distinct class, not specified by anything that preceded it, but fully, definitely, and clearly designated by the qualifying phrases that follow it. State v. Canney, 19 N. H. 135; State v. Wilson, 47 N. H. 101. It seems to me evident that it was the intention of the lawmakers to punish the felonious breaking and entering into any buildings 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 Ga. 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 place must be in the nature of a storehouse. But the supreme court of Georgia said: "But the words, 'or other place of business of another,' are further defined by the qualification, 'where valuable goods, wares, produce, or any other article of value are contained or stored,' and when the two terms of the sentence are put together, just as they occur in the Code, the places where burglary may be committed, besides dwellings, mansions, and storehouses, are as distinctly specified as if they were expressly limited to those three. Indeed, those other places are more accurately described and have a more express definition, by the terms of the law itself, than the word 'storehouse." " In U. S. v. Wiltberger, 5 Wheat. 76, Chief Justice Marshall says: "Although penal laws are to be strictly construed, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be applied so 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." 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 17 Geo. III. c. 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 offenders was often 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 a mile and a half from the dwelling house, though all the places enumerated were only such as are immediately adjacent to a dwelling house." Reg. v. Edmundson, 2 El. & El. 77, 28 Law J. Mag. Cas. 213. Though such a warehouse was not ejusdem generis, it was within the contemplation of the legislature.

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.

STATE v. SATTLEY.

(Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

-

BANKS AND BANKING-RECEIVING DEPOSITS AFTER KNOWLEDGE OF INSOLVENCY CONSTITUTIONAL PROHIBITION - NECESSITY FOR LEGISLATION POWER OF STATE TO DEFINE CRIMES-INDICTMENT-SUFFICIENCY-COMPETENCY OF EVIDENCE -OBJECTIONS TO EVIDENCE-VALUE OF CORPO RATE STOCK-GENERAL VERDICT ON SEVERAL COUNTS.

1. When the constitution provides that the doing of certain acts shall be a crime, "the nature and punishment of which shall be prescribed by law" (article 12, § 27), there is no offense until the legislature has defined the crime whose constituents are thus indicated in the constitution, and has fixed the penalty therefor.

2. Rev. St. 1889, § 3581, providing that any bank officer who shall receive or assent to the reception of a deposit, or who shall create or assent to the creation of any indebtedness by the bank, knowing that it is in a failing condition, shall be guilty of larceny, and punished, etc., sufficiently prescribes the nature of the crime, as required by Const. art. 12, § 27.

3. An objection that a statute declaring certain acts to be larceny is repugnant to the common-law definition of that crime is untenable, the state being in no wise restricted in defining offenses.

4. An indictment under Rev. St. 1889, § 3581, charging a bank officer with receiving a deposit, knowing that the bank was insolvent, is not defective because each count concludes with the words, "did take, steal, and carry away."

5. The receiving of a deposit, and issuing of a certificate therefor, creates "an indebtedness," within Rev. St. 1889, § 3581, making it a crime for any bank officer to create or assent to the creation of any indebtedness by the bank, knowing its insolvency, etc.

6. On an issue as to the value of the assets of an insolvent bank, the testimony of the assignee, who had devoted a year to ascertaining their worth, and of appraisers, who had spent 43 days in personally examining every asset in the schedule, was admissible; it appearing that the witnesses had been in the banking or realestate business in the city where the property was situated for many years, and that they were well acquainted with the financial standing of people there, and with the values of city property.

7. Where the bill of exceptions does not present copies of documents concerning which witnesses were examined, objections to their testimony in reference thereto cannot be considered.

8. On the trial of a bank officer for receiving deposits, knowing that the bank was insolvent, evidence that depositors demanded their money, and of the refusal of the bank employés to pay them, is admissible, whether or not defendant personally heard the demands, to show the failure of the bank to meet its obligations in the ordinary course of business.

9. On an issue as to the value of certain stock held by a bank at the date of its assignment, the court properly refused to permit a witness to state the value of a building owned by the corporation which issued such stock, based on his knowledge of its cost..

10. It having been shown that the stock had a value, the inquiry, at most, should have been confined to the market value of the real estate at the date of the bank's assignment.

11. Evidence of the value of a corporation's realty is only received to show the value of its stock in the absence of better evidence.

12. If a bank employé, by authority of his superior officer, given before the latter had knowledge that the bank was insolvent, receives a deposit after its insolvency, such officer, unless he revoked the authority after he became aware of the condition of the bank, will be liable to prosecution under Rev. St. 1889, § 3581, making it a crime for a bank officer to assent to the receipt of a deposit, knowing that the bank is in failing circumstances.

13. An instruction, in the language of the statute, that the failure of the bank "is prima facie evidence of knowledge on the part of its cashier that the same was in failing circumstances," coupled with a statement that "prima facie evidence is such that raises such a degree of probability in its favor that it must prevail unless it be rebutted, or the contrary proved," is not erroneous. State v. Buck, 25 S. W. 573, 120 Mo. 479, followed.

14. Where an indictment under Rev. St. 1889, 3581, contains a count for receiving a deposit, knowing that the bank is insolvent, and another count for assenting to the creation of an indebtedness by the bank, with such knowledge, and the evidence shows but one transaction, which consisted in receiving a deposit and issuing a certificate therefor, a general verdict of guilty, without specifying on which count, is sufficient.

Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Elmer C. Sattley was convicted of larceny, under Rev. St. 1889, § 3581, and appeals. Affirmed.

The defendant was indicted in the criminal court of Jackson county, at Kansas City, at the September term, 1893, for grand larceny, under section 3581, Rev. St. 1889, for having, as cashier of the Kansas City Safe-Deposit & Savings Bank, unlawfully and feloniously received a deposit of $300, the property of Mrs. Christina Vogt, when said bank was in failing circumstances, after he had knowledge it was in that condition; and, in another count, for having assented to the creation of an indebtedness by said bank, issuing to said Christina Vogt a certificate of deposit for said $300, payable to the order of Mrs. Mary Seitzler or Mrs. E. Vogt, due six months after the date thereof, to wit, July 10, 1893, and bearing 5 per cent. interest until maturity. Defendant was duly arraigned, and entered a plea of not guilty. After a change of venue After a change of venue to Independence, the cause was finally tried in July, 1894, and the defendant convicted and sentenced to the penitentiary for a term of four years. Though sentenced by the court in August, 1894, the transcript of this appeal was not filed in this court until April 29, 1895,-too late for a hearing at the April term. Such delays are inexcusable. We again call the attention of the circuit and criminal courts to this dilatory practice. It is

fast becoming a reproach to the administration of the law.

The Kansas City Safe Deposit & Savings Bank was organized in March, 1883, with a capital stock of $50,000. The defendant, Sattley, was one of its officers and a member of its board of directors from 1886, continuously, until it failed and made an assignment for the benefit of its creditors, on July 10, 1893. For seven years prior to its collapse, defendant was cashier of the bank, and, together with the president thereof, had actual, absolute control of its affairs. H. P. Churchill was president until 1891, when he was succeeded by J. C. Darragh, who continued as president until the failure, on July 10, 1893. The by-laws, to which the witnesses for the state and defendant both very often refer in their testimony, are not preserved in the bill of exceptions; and much of the statements of counsel as to what said by-laws would establish cannot be substantiated by the record, or considered in making up our judgment. The bill of exceptions recites that it contains "all the oral testimony given and offered upon the trial," "but does not include copies of documentary evidence introduced and offered and admitted in said cause, but it contains a statement and description of each piece of documentary evidence." The reports of the bank officers to the secretary of the state, some six in number, upon which pages of the oral testimony are based, and without which we can form no adequate idea of the effect of such evidence, or the rulings of the trial court thereon, is entirely omitted. The socalled abstract of the evidence is not indexed, and we have been put to much unnecessary and fruitless labor, endeavoring to corroborate points made by counsel by reference to the record. record. Knowing as we do the ability of the counsel who prepared this bill, and having had on other occasions so many proofs of their ability and industry in preparing statements and abstracts for this court, we are greatly surprised at the lax and unsatisfactory condition of this abstract.

The business of the institution was that of a savings bank, the bulk of the deposits being by the poorer classes,-sewing women, servant girls, washerwomen, mechanics, and day laborers. The bank kept open every Saturday and Monday night until 8 o'clock, in order to receive the earnings and small savings of laborers. When it closed its doors on July 10, 1893, it had only $11,000 in cash in its vaults, whereas its liabilities aggregated $2,039,068; having, in other words, less than one-half of 1 per cent. of its liabilities to its depositors on hand in cash. The bank had been greatly crippled by a run on it in 1891. The officers of the bank seem to have conducted it without any regard whatever for the safety of their depositors. The defendant, Sattley, was indebted directly and indirectly to the bank in the sum of $85,000, for which the bank held securities worth about $5,000. The president, Darragh, directly and