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its general language, it was said, restricted palpably obvious to require illustration. Upit to the same genus as the specific words. on the before-mentioned principle, it has In the course of his judgment, the chancel- been adjudged that an act made to punish lor, Halsbury, said: "If understood in their the person who stole a cow is not applicable widest sense, the words are wide enough to to him who steals a heifer (Richard Cook's include it [the injury]; but two rules of con- Case, Leach, 105), and a law prohibiting the struction, now fairly established as a part of transportation of provisions in any wagon, our law, may be considered as limiting these or otherwise, to an enemy, is not infringed words. One is that words, however general, by driving fat oxen on the leg (U. S. v. Shelmay be limited with respect to the subject- don, 2 Wheat. 119). That the mischiefs at matter in relation to which they are used. which these laws were aimed, existed, in The other is that general words may be re- both the cases alluded to, is past a question; stricted to the same genus as the specific but the acts prosecuted, not being within the words that precede them.” To the like ef- words of the legislature, were considered as fect, see Hermance v. Board of Sup'rs, 71 not within the prohibitions of the laws. I N. Y. 481; People v. Railway Co., 84 N. Y. will only add that, the moment the strict 565; People v. Richards, 108 N. Y. 137, 15 N. construction of penal laws is abandoned, the E. 371; Suth. St. Const. § 268 et seq.; State difference between their interpretation and v. Stoller, 38 Iowa, loc. cit. 324, and cases that of remedial laws must terminate, as cited; Bish. St. Crimes, $ 245 et seq., and there is no middle ground between them.” cases cited; State v. McCrum, 38 Minn. 154, In U. S. v. Wiltberger, 5 Wheat. 76, Chief 36 N. W. 102.
Justice Marshall said: “It would be dangerOf course, if we “take the wings of the ous, indeed, to carry the principle, that a morning, and fly unto the uttermost parts of case which is within the reason or mischief the earth," we may industriously ferret out of a statute is within its provisions, so far some sporadic cases contrary to the well- as to punish a crime not enumerated in the settled rule here announced; but I do not statute, because it is of equal atrocity or of believe we should do this, in entire disregard kindred character with those which are enuof our own decisions and of the overwhelm- merated. If this principle bas ever been recing weight of authority. And, in this connec- ognized in expounding criminal law, it has tion, we should not be unmindful of the fact been in cases of considerable irritation, that criminal statutes are to be strictly con- which it would be unsafe to consider as strued. Says Bishop: “Such statutes are precedents forming a general rule for other to reach no further in meaning than their cases." Guided by these considerations, I words. No person is to be made subject to do not regard the term “chicken house buildthem by implication, and all doubts concern- ing” as one recognized by the statute under ing their interpretation are to preponderate discussion, and therefore regard the indictin favor of the accused. Only those transac- ment fatally defective. tions are covered by them which are within 3. Section 3944, Rev. St. 1889, provides both their spirit and their letter."
letter." St. that: "Every person who shall be a principal Crimes (2d Ed.) $$ 119, 193, 194, 218, 220, 227. in the second degree in the commission of Elsewhere the learned author observes: "As any felony, or who shall be an accessory to stated by Hawkins, the doctrine is: 'No any murder or other felony before the fact, parallel case, which comes within the same shall, upon conviction, be adjudged guilty mischief, shall be construed to be within the the offense in the same degree, and may purview of it (the statute), unless it can be be charged, tried, convicted and punished in brought within the meaning of the words.' the same manner, as a principal in the first In slightly different language, though a case degree." Under this section it has been of this sort is fully within the mischief to contended that the words "may be," etc., be remedied, and is even of the same class, mean “shall”; but we do not look at the and within the same reasons, as other cases point in that way. The point remains as it enumerated in the statute, construction will was at common law. The indictment may not be permitted to bring it within the stat- either allege the matter according to the ute unless it is also within the statutory fact, or charge both the principal and the acwords.” Id. $ 220. In Daggett v. State, 4 cessory as principals in the first degree. Conn. 60, Hosmer, C. J., when speaking of State V. Anderson, 89 Mo, loc. cit. 333, 1 S. the strictness which should characterize the W. 135. construction of such statutes, aptly remarks: 4. As to the affidavit for a change of venue, “In extension of the letter of the law, noth- it cannot be noticed, since it could only have ing may be assumed by implication; nor been preserved in a bill of exceptions, and may the mischief intended to be prevented there is none in this case. Because of the or redressed, as against the offender, be re- defect in the indictment, the judgment garded in its construction. It was the ob- should be reversed, and the cause remanded. ject of the principle to establish a certain rule, by conformity to which mankind should BURGESS, J., concurs. be safe, and the discretion of the judge limited. How much this must contribute to the GANTT, P. J. (dissenting). That the prinsecurity and enjoyment of the citizen is too ciple of ejusdem generis is frequently applied in the construction of statutes, both often resorted to, and growing out of the civil and criminal, I readily concede, and it association of words in an act of the legislais as often held that penal laws must be ture, is that "the inferior does not include strictly construed in favor of the accused the superior." Thus, where duties were imand against the state. But, after all that posed under the general head of "metals," has been said, these canons of construction upon copper, brass, pewter, and tin, and on have but one purpose, and that is to enable all other metals not enumerated, it was held the courts to ascertain the legislative intent. to include only metals inferior to those If the object and intention are plain, there is named, and not to fall on gold or silver, nothing to construe. In Heydon's Case, 3 which are known as “precious metals.” Coke, 8, it was resolved by all the barons Casher v. Holmes, 2 Barn. & Adol. 592. of the exchequer "that, for the sure and true But, along with these rules of construcinterpretation of all statutes in general (be tion, which have descended to us from the they penal or beneficial, restrictive or enlar- sages of the law, has come, at all times, the ging of the common law), four things are to admonition that the plain intention of the be discerned and considered: (1) What was law must not be sacrificed by any rule of the common law before the making of the construction. As said by the supreme court act? (2) What was the mischief and defect of the United States: "When the words are for which the common law did not provide? general, and include various classes of per(3) What remedy the parliament hath re- sons, there is no authority which would jussolved and appointed to cure the disease of tify a court in restricting them to one class the commonwealth. (4) The true reason of and excluding others, where the purpose of the remedy. And then the office of all judges the statute is alike applicable to all. The is always to make such construction as shall words should be taker in such a sense, bent suppress the mischief and advance the rem- neither one way nor the other, as will best edy, and to suppress subtle inventions and manifest the legislative intent." In Reg. v. evasions for continuance of the mischief, and Payne (1865–1872) L. R. 1 Cr. Cas. 27, the pris'pro privato commodo,' and to add force and on act of 1865, which forbade the conveylife to the cure and remedy, according to the ance into any prison, with intent to facilitate true intent of the makers of the act, 'pro the escape of a prisoner, of any mask, dress, bono publico.'” The courts of this country or other disguise, or of any letter, or any have uniformly agreed that they have no other article or thing, it was unanimously right to extend a criminal statute to cases ruled by the court, through Pollock, C. B., out of its letter; but the question often that a crowbar was included under the arises, as in the case at bar, when the words words "or any other article or thing," though are broad enough, but the question is, does the rule of ejusdem generis was pressed by the case in hand fall within the mischief of
in argument. In Woodworth v. the statute? One reason assigned for invest- State, 26 Ohio St. 196, it was held that "a ing the judges with the office of construing | supervisor of roads” was an officer, within statutes is "that the lawmakers cannot possi- the meaning of a statute which provided bly set down all cases in express terms.” A "that, if any person shall abuse any judge general word, following one or more less or justice of the peace, resist or abuse any general terms, ejusdem generis takes its mean- sheriff, constable or other officer, in the exing from them, and ordinarily is presumed to ecution of his office, the person so offending be restricted to the same genus as those shall be punished," etc. 1 Swan & C. St. p. words. The reports abound in illustrations 428, § 9. The principle of ejusdem generis of the application of this rule of construc- was invoked, and Chief Justice McIlvaine tion, as where a statute authorized distress said: "It must be remarked that the rule of for rent of "corn, grass, or other product," construction referred to can be used only growing on the leased premises, only prod- as an aid in ascertaining the legislative inucts similar to corn and grass could be dis- tent, and not for the purpose of confining the trained, and not young trees, which were operation of a statute within limits narrower also products of the land, but of distinct than those intended by the lawmaker. It character. Clark v. Gaskarth, 8 Taunt. 431. affords a mere suggestion to the judicial And an act making it penal for any “ware- mind that, where it clearly appears that the houseman, wharfinger, or other person, to lawmaker was thinking of a particular class issue any voucher for goods, wares,” etc., of persons or objects, his words of more "unless he shall have actually received them general description may not have been inin store or to ship or transfer such goods," tended to embrace those not within that etc., "without the return of the receipt,” the class. The suggestion is one of common phrase "other person” is to be construed sense. Other rules of construction are, howejusdem generis with warehouseman and ever, equally potent, especially the primary wharfinger, and does not include one who rule which suggests that the intent of the received grain on storage, with the option legislature is to be found in the ordinary of becoming its purchaser, and without com- meaning of the words of the statute. Anpensation if he shall not exercise that option, other well-established principle is that even and who gives a receipt not intended to be the rule requiring the strict construction of negotiable. Another rule of construction, a penal statute, as against the prisoner, is not violated by giving every word of the buildings of almost every kind constructed statute its full meaning, unless restrained by by mankind. It is thus evident that the legthe context.” After holding that the stat- islature had in view the punishment of a ute included a supervisor, under the phrase large class of offenders, prowlers without of “other officer,” he proceeds to say: “This visible means of support, who were breaking is the doctrine of the later cases generally, into the storehouses and warehouses and and especially those of American courts. It unguarded buildings where valuable goods is not intended to ignore the rule which re- were kept and robbing them of their conquires penal statutes, as against the prison- tents, and the remedy proposed was to make er, to be construed strictly, and in his favor this offense burglary, though not included in liberally. But it does prevent a construc- the common-law definition of that crime, but tion, as against him so strict, or in his favor mitigating the degree of the crime, and gradso liberal, as to defeat the obvious intention ing the punishment therefor. Burglary in of the legislature.” See, also, Reg. v. Dou- the second degree by our statute (section bleday, 3 El. & El. 500. In Shillito v. Thomp- | 3526, Rev. St. 1889) is defined to be the son, 1 Q. B. Div. 12, a prosecution was had “breaking and entering, first, any building under a by-law of Doncaster borough, which within the curtilage of a dwelling house but provided “that, if any butcher, or dealer in not forming a part thereof; second, any shop, meat, or any fishmonger, poulterer or other store, booth, tent, warehouse, or other buildperson, shall expose on his premises, or have ing, or any boat or vessel, or any railroad in his possession with intent to sell or ex- car, in which there shall be at the time some pose to sale any meat, fish, poultry or other human being, or any goods, wares, merchanvictuals or provisions, unfit for food of man," dise, or other valuable thing kept or deposithe shall be subject to penalty. The defend- ed, with intent to steal or commit any felony ant, a grocer, exposed for sale on his premi- therein." I think that it is perfectly plain ses cheese which was unfit for food. He that the lawmakers intended to throw the was convicted, and on his appeal urged that protection of this statute over any building "cheese was not ejusdem generis with meat in which there should be, at the time, some and the other things mentioned in the by- human being, or any goods, wares, or merlaw," but the conviction was affirmed. In chandise, or other valuable thing, kept or State v. Solomon, 33 Ind. 450, a statute for the deposited, and that the characterization of protection of religious meetings provided the building was only limited or restricted that, if any person shall erect, bring, keep, by the modifying clauses, to wit, "in which contrive, or maintain any booth, tent, wagon, there should be at the time some human huckster shop, or other place for the sale of being, or merchandise or valuable thing kept intoxicating liquors, cider, beer, or other or deposited,” and not by the enumeration drinks, or for the sale of any other article of other buildings by their usual designation. whatever, etc. It was shown the defendant It seems too plain for construction that this sold cigars, tobacco, candies, peaches, and was the obvious intention, and that the melons within the forbidden territory of a "chicken house building," in this indictment, camp meeting. On
On appeal, the supreme falls not only within the letter, but the spirit, court of Indiana said: “It is true that the of the statute as well. articles sold and for sale are not those spe- I do not think ejusdem generis can apply cifically named in the statute, but they are to a construction of this section for another 'other articles,' spoken of in the law. The reason. That principle applies only when evidence clearly brings the case within the the specific words are all of the same class letter and spirit of the amendment of 1865, or nature. When they are of different genabove referred to." So that, while it is era, the meaning of the general word is unafoften safe to apply the maxim, “Noscitur a fected by its connection with them. The sociis,” in the interpretation of the words of particular words, "shop," or "store," on the a statute, the courts look at the statute, and one hand, "booth," or "tent," on the other, every word of it, and statutes in pari mate- and "warehouse," on still another, each exria, and consider the reason of the statute, hausted whole classes, and each distinct from to ascertain its meaning, and are not bound the other. Hence, "other building" cannot by any one rule of construction, however derive its color by association with any one useful it may have proved.
of them, nor by a mingling of all, but stands Applying the tests in Heydon's Case, su- as the representative of a distinct class, not pra, we find burglary, at common law, as de- specified by anything that preceded it, but tined by Lord Coke, was committed when fully, definitely, and clearly designated by one in the nighttime broke and entered into the qualifying phrases that follow it.
State a mansion house of another, with intent to v. Canney, 19 N. H. 135; State v. Wilson, 47 kill some reasonable creature, or to commit N. H. 101. It seems to me evident that it some other felony within the same, whether was the intention of the lawmakers to punhis felonious intent was executed or not. 3 ish the felonious breaking and entering into Inst. 63; 1 Hale, P. C. 549; 2 Russ. Crimes, any buildings in which goods and merchan1. By statute, in most, if not all, of the dise or other valuable things were kept or states, the common law has been modified, deposited. It mattered not by what name so that the offense can now be committed in such building was otherwise designated.
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.
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, for 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 de. feat 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.
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 CHIMES-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, 8 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 receive ing 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 fast becoming a reproach to the administrastock held by a bank at the date of its assign- tion of the law. ment, the court properly refused to permit a witness to state the value of a building owned
The Kansas City Safe Deposit & Savings by the corporation which issued such stock, Bank was organized in March, 1883, with a based on his knowledge of its cost.
capital stock of $50,000. The defendant, Satt10. It having been shown that the stock had ley, was one of its officers and a member of a value, the inquiry, at most, should have been confined to the market value of the real estate its board of directors from 1886, continuously, at the date of the bank's assignment.
until it failed and made an assignment for 11. Evidence of the value of a corporation's realty is only received to show the value of its
the benefit of its creditors, on July 10, 1893. stock in the absence of better evidence.
For seven years prior to its collapse, defend12. If a bank employé, by authority of his ant was cashier of the bank, and, together superior officer, given before the latter had
with the president thereof, had actual, absoknowledge that the bank was insolvent, receives a deposit after its insolvency, such officer, unless
lute control of its affairs. H. P. Churchill he revoked the authority after he became aware was president until 1891, when he was sucof the condition of the bank, will be liable to ceeded by J. C. Darragh, who continued as prosecution under Rev. St. 1889, § 3581, making president until the failure, on July 10, 1893. it a crime for a bank officer to assent to the receipt of a deposit, knowing that the bank is in
The by-laws, to which the witnesses for the failing circumstances.
state and defendant both very often refer in 13. An instruction, in the language of the
their testimony, are not preserved in the bill statute, that the failure of the bank "is prima facie evidence of knowledge on the part of its
of exceptions; and much of the statements of cashier that the same was in failing circum
counsel as to what said by-laws would esstances,”, coupled with a statement that "prima tablish cannot be substantiated by the recfacie evidence is such that raises such a degree ord, or considered in making up our judgment. of probability in its favor that it must prevail unless it be rebutted, or the contrary proved,"
The bill of exceptions recites that it contains is not erroneous. State v. Buck, 25 S. W. 573, "all the oral testimony given and offered upon 120 Mo. 479, followed.
the trial," "but does not include copies of 14. Where an indictment under Rev. St. 1889, § 3581, contains a count for receiving a
documentary evidence introduced and offered deposit, knowing that the bank is insolvent, and
and admitted in said cause, but it contains a another count for assenting to the creation of statement and description of each piece of an indebtedness by the bank, with such knowl- | documentary evidence.” The reports of the edge, and the evidence shows but one transaction, which consisted in receiving a deposit and
bank officers to the secretary of the state, issuing a certificate therefor, a general verdict some six in number, upon which pages of the of guilty, without specifying on which count, is oral testimony are based, and without which sufficient.
we can form no adequate idea of the effect Appeal from criminal court, Jackson coun- of such evidence, or the rulings of the trial ty; John W. Wofford, Judge.
court thereon, is entirely omitted. The soElmer C. Sattley was convicted of larceny, called abstract of the evidence is not indexed, under Rev. St. 1889, $ 3581, and appeals. Af- and we have been put to much unnecessary firmed.
and fruitless labor, endeavoring to corroborate The defendant was indicted in the criminal points made by counsel by reference to the court of Jackson county, at Kansas City, at record. Knowing as we do the ability of the the September term, 1893, for grand larceny, counsel who prepared this bill, and having under section 3581, Rev. St. 1889, for having, had on other occasions so many proofs of their as cashier of the Kansas City Safe-Deposit & ability and industry in preparing statements Savings Bank, unlawfully and feloniously re- and abstracts for this court, we are greatly ceived a deposit of $300, the property of Mrs. surprised at the lax and unsatisfactory conChristina Vogt, when said bank was in fail- dition of this abstract. ing circumstances, after he had knowledge it The business of the institution was that of was in that condition; and, in another count, a savings bank, the bulk of the deposits being for having assented to the creation of an in- by the poorer classes,--sewing women, servdebtedness by said bank, issuing to said Chris- ant girls, washerwomen, mechanics, and day tina Vogt a certificate of deposit for said $300, laborers. The bank kept open every Saturpayable to the order of Mrs. Mary Seitzler day and Monday night until 8 o'clock, in oror Mrs. E. Vogt, due six months after the der to receive the earnings and small sav. date thereof, to wit, July 10, 1893, and bear- ings of laborers. When it closed its doors on ing 5 per cent. interest until maturity. De- July 10, 1893, it had only $11,000 in cash in fendant was duly arraigned, and entered a its vaults, whereas its liabilities aggregated plea of not guilty. After a change of venue $2,039,068; haying, in other words, less than to Independence, the cause was finally tried one-half of 1 per cent. of its liabilities to its in July, 1894, and the defendant convicted depositors on hand in cash. The bank had and sentenced to the penitentiary for a term been greatly crippled by a run on it in 1891. of four years. Though sentenced by the The officers of the bank seem to have concourt in August, 1894, the transcript of this ducted it without any regard whatever for appeal was not filed in this court until April the safety of their depositors. The defend29, 1895,-too late for a hearing at the April ant, Sattley, was indebted directly and inditerm. Such delays are inexcusable. We rectly to the bank in the sum of $85,000, for again call the attention of the circuit and which the bank held securities worth about criminal courts to this dilatory practice. It is $5,000. The president, Darragh, directly and