페이지 이미지



the assumed intention of the legislature to punish only wilful wrong-doing. It was held that "the evidence must satisfy the jury that the conversion was not only against the consent of the plaintiff, but was attended by circumstances of bad faith and intentional wrong in order to bring it within the penal provision." A statute imposed a penalty on any person who should take, kill or have in his possession any partridges between the 1st of February and the 1st of September. It was held that a person having partridges in his possession between those two dates was not liable to the penalty if the partridges had been killed before the earliest day named, as otherwise a man might be liable to a penalty if he lawfully killed a partridge on the last moment of February 1, but had it in his possession on the first moment of February 2.3 So where penalties were imposed upon bakers who used certain ingredients in bread, upon persons sending dangerous goods by railway, or being in possession of stores which bore the admiralty mark," it was held that knowledge was essential to constitute any of these offenses. A statute imposed a penalty on any voter receiving a reward "to give his vote" at an election. It was held that this penalty was not incurred by one who received a reward after he had voted. A statute providing that a seaman should forfeit his wages by deserting his ship was held not to apply to one who was treated with such cruelty as justified him in refusing to remain on board.'

§ 356. Courts will not by strict construction defeat the intention of the law-maker.- Where the intent is plain it will be carried into effect. It will not be evaded or defeated on the principle of strict construction. The principle will be adhered to that the case must be brought within the letter and spirit of the enactment, but the intent of a criminal statute may be

1 Cohn v. Neeves, 40 Wis. 393; Wallace v. Finch, 24 Mich. 255; State v. Baker, 47 Miss. 95; Mahoon v. Greenfield, 52 id. 434.

6 Rex v. Sleep, L. & C. 44. Compare Lee v, Simpson, 3 C. B. 871; Rex v. Woodrow, 15 M. & W. 404; Reg. v. Harvey, L. R. 1 C. C. 284; Reg. v.

22 Geo. III, ch. 19, as amended by Dean, 12 M. & W. 39. 39 Geo. III., ch. 34.

3 Simpson v. Unwin, 3 B. & Ad 134; Wilb. on St. 253.

4 Core v. James, L. R. 7 Q. B. 135.

5 Hearne v. Garton, 2 E. & E. 66.

7 Wilb. on St. 254.

8 Huntingtower v. Gardiner, 1 B. & C. 297.


9 Edward v. Trevellick, 4 E. & B.

ascertained from a consideration of all its provisions, and that intent will be carried into effect. Such statutes will not be construed so strictly as to defeat the obvious intention.' The principle of strict construction does not allow a court to make that an offense which is not such by legislative enactment; but this does not exclude the application of common sense to the terms made use of in an act in order to avoid an absurdity which the legislature ought not to be presumed to have intended. This was said of a statute providing for the punishment of any person who should knowingly and wilfully receive, conceal or dispose of any human body or the remains thereof, which shall have been dug up, removed or carried away, etc., "not being authorized by the selectmen of any town in this commonwealth." The court said: "Taken strictly without reference to the subject-matter and the manifest intention and object of the legislature, it would appear that in order to sustain an indictment on the statute it must be averred and proved that the board of health or selectmen of no town in the commonwealth had given license to do the act complained of. The consequence would be, as oral testimony alone can be admitted on criminal trials of facts provable by witnesses, that the officers of every town to the number of three or four hundred must be summoned to give their personal attendance in the court where such prosecution is pending. We hazard nothing in saying that the legislature never intended such an absurdity." It was held that "any town" had reference to the town within which the offense was committed. In the confiscation act of congress of 1861 property used in aiding or promoting the rebellion was declared lawful subject of prize and capture wherever found. In United States v. Athens Armory the court say: "Limit the term 'prize' or 'capture' as here employed to a strict technical import and the statute fails of its object and becomes an absurdity." Therefore, having in view that the purpose of the act was to make it "one of the means to suppress the rebellion," these words were held not to limit the operation of the act to property taken at sea. A camp

1 Ante, § 349.

2 Commonwealth v. Loring, 8 Pick. 373.

312 U. S. Stats. at L. p. 319.

42 Abb. (U. S.) 129, 135.

5 United States v. Athens Armory, 35 Ga. 344.

meeting or a temporary encampment by a denomination of Christians for the purpose of religious exercises is "a place set apart for the worship of Almighty God" within the intent of an act prohibiting the retailing of spirituous liquors within a certain distance of such a place.1 "Trade" has been held to include "cod-fishery." To persuade a slave to leave was held "to aid him to depart." A vessel was held "at sea" when she was without the limits of any port or harbor on the sea coast.* But under a statute which provides a penalty "if any person shall wilfully or maliciously kill, maim, beat or wound any horses, cattle, goats, sheep or swine, or shall wilfully injure or destroy any other property of another," a dog was held not included in the denomination of "other property." It was inferred from the use of the words "injure or destroy" with reference to the property designated by the phrase "any other property," that this latter expression was intended to include only inanimate property to which the terms "kill,” “maim,” "wound," etc., could not properly be applied. It was also said: "Nor do they [dogs] come within either class or description of the animals which are mentioned. They are not regarded by law as being of the same intrinsic value as property as the animals enumerated, and cannot, we think, be brought within the prohibition under the general expression 'any other property' by intendment."

§ 357. Under a statute prohibiting any man marrying "his brother's wife," marrying his brother's widow is an offense." An act changing the venue of prosecutions for offenses committed on board any vessel "navigating” any river within the state was held applicable to a vessel so engaged, though at anchor at the time the offense was committed." "Where words are general," said Story, J., " and include various classes of persons, I know of no authority which would justify the court in restricting them to one class, or in giving them the narrowest interpretation, when the mischief to be redressed by the statute is equally applicable to all of them. And where

1State v. Hall, 2 Bailey, 151.

2 The Schooner Nymph, 1 Sumn.


3 Crosby v. Hawthorn, 25 Ala. 221. 4 The Schooner Harriet, 1 Story, 251.

5 State v. Marshall, 13 Tex. 55.

• Commonwealth v. Perryman, 2 Leigh, 717.

7 People v. Hulse, 3 Hill, 309.


a word is used in the statute which has various known significations, I know of no rule that requires the court to adopt one in preference to another simply because it is more restrained, if the objects of the statute equal the largest and broadest sense of the word. In short, it appears to me that the proper course in all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature." A statute made robbery a capital offense, when the robber is, "at the time of committing such assault, armed with a dangerous weapon, with intent to kill or maim the person so assaulted and robbed." To the contention that, to constitute the crime of robbery a capital offense within this statute, it must be proved that there was an absolute intent to kill or maim the party robbed, whether the robbery could be accomplished without killing or maiming or not, the court said: "If a statute, creating or increasing a penalty, be capable of two constructions, undoubtedly that construction which operates in favor of life or liberty is to be adopted; but it is not justifiable in this, any more than in any other case, to imagine ambiguities, merely that a lenient construction may be adopted. If such were the privilege of the court, it would be easy to obstruct the public will in almost every statute enacted; for it rarely happens that one is so precise and exact in its terms as to preclude the exercise of ingenuity in raising doubts about its construction." It was held to be sufficient that the party be armed with a dangerous weapon with intent to kill or maim the party assaulted by him, in case such killing or maiming be necessary to his purpose of robbing, and that he have the power of executing such intent. Where for a specified offense the statute provides that the person convicted shall be fined not less than $100, the construction is not to be so strict as to hold that a fine is not authorized above that sum. The court in such a case held that the exclusion of one subject or thing is the inclusion of all other things. "When the legislature," say the court, "in this case, excluded the power of the court to impose a fine of less than $100, it, by 1 United States v. Winn, 3 Sumn. 209.

2 Commonwealth Mass. 359.

v. Martin, 17

implication, authorized the exercise of power to impose a fine for more than that sum. It fixed the minimum, but fixed no maximum."1

§ 358. What statutes are penal.- Among penal laws which must be strictly construed, those most obviously included are all such acts as in terms impose a fine or corporal punishment under sentence in state prosecutions, or forfeitures to the state as a punitory consequence of violating laws made for preservation of the peace and good order of society. But these are not the only penal laws which have to be so construed. There are to be included under that denomination also all acts which impose by way of punishment any pecuniary mulet or damages beyond compensation for the benefit of the injured party, or recoverable by an informer, or which, for like purpose, impose any special burden, or take away or impair any privilege or right.2

An act which made a tender of bills emitted by the continental congress a bar to any future demand of a debt was held highly penal, and not to be extended beyond the strict import of its language. A law prohibited the circulation or passing of "tickets" under penalty. The court held that did not apply to a man giving a due-bill or other written evidence of a debt. “A penal statute," say the court, "taking away or abridging the right of individuals to give or receive a written acknowledgment of a debt due, or a promise to pay a debt, in money or goods, ought to be very plain and explicit in its terms; and a party seeking to recover the penalty ought to show a case clearly and distinctly within the provisions of the statute." A statute which subjects a mortgagee to a penalty for refusal to discharge a mortgage will be construed strictly;

[ocr errors]

1 Hankins v. People, 106 Ill. 628. 2 Allen v. Stevens, 29 N. J. L. 509; Cole v. Groves, 134 Mass. 471; Camden, etc. R. R. Co. v. Briggs, 22 N. J. L. 623; Read v. Stewart, 129 Mass. 407; Breitung v. Lindauer, 37 Mich. 217; Cumberland, etc. Canal v. Hitchings, 57 Me. 146; Reed v. Northfield, 13 Pick. 96; Palmer v. York Bank, 18 Me. 166; Bayard v. Smith, 17 Wend. 88; Bay City, etc. R. R. Co. v.

Austin, 21 Mich. 390; Henderson v.
Sherborne, 2 M. & W. 236; Mer-
chants' Bank v. Bliss, 13 Abb. Pr. 225;
Titusville's Appeal, 108 Pa. St. 600;
Marston v. Tryon, id. 270.

3 Shotwell's Ex'r v. Dennman, 1 N. J. L. 174; Suffolk Bank v. Worcester Bank, 5 Pick. 106.

4 Allaire v. Howell Works Co. 14 N. J. L. 21, 23.

« 이전계속 »