merely describing it by a general name known to the common law, as "rape," "robbery," "arson," "assault and battery," etc., is not too indefinite.166

46. Construction of Statutes-In General.

Unfortunately, in the enactment of penal statutes, the legislature does not always express itself in clear and unambiguous language. In such a case it is for the courts to construe the statute, and ascertain, if possible, what the legislature intended. In the construction of statutes in cases of doubt, the courts are governed by certain well-established rules. These rules, or the most important of them, will be given in the following sections. The Intention of the Legislature Governs.—The principal rule is that the intention of the legislature governs. Whenever the intention of the legislature is manifest, it must be given effect, provided the statute is not unconstitutional. This is the paramount rule of construction.167 "All the rules of construction must give way to the fundamental principle that the intention of the legislature is to govern. The design of all rules is to furnish guides to assist in arriving at the intention of the legislature."168

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"gaming house," "gaming table," "gaming device," "faro," "banking game," etc. U. S. v. Speeden, 1 Cranch, C. C. 535, Fed. Cas. No. 16,366; Miller v. State, 48 Ala. 122; People v. Carroll, 80 Cal. 153, 22 Pac. 129; State v. Thomas, 50 Ind. 292.

166 See State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631; Ex parte Bergen, 14 Tex. App. 52; Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833; Houston v. Com., 87 Va. 257, 12 S. E. 385.

167 Cain v. State, 20 Tex. 355; Walker v. State, 7 Tex. App. 245; Albrecht v. State, 8 Tex. App. 313; Smith v. People, 47 N. Y. 330; People v. Potter, 47 N. Y. 375, 379; Noble v. State, 1 G. Greene (Iowa) 325; Parkinson v. State, 14 Md. 184, 194; State v. Stephenson, 2 Bailey (S. C.) 334; Com. v. Kimball, 24 Pick. (Mass.) 366, 35 Am. Dec. 326; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269.

168 Cain v. State, 20 Tex. 355.

Reasonable Construction.-Another rule, applicable in all cases, is that statutes must have a reasonable construction.1

47. Rules to Aid in Construction.

169

(a) Ordinary Meaning of Language.-Except as to technical terms, statutes are to be construed according to the ordinary and literal meaning of their language, if that meaning can be clearly ascertained.170 But words will be construed contrary to their literal meaning, when necessary in order to give effect to the manifest intention of the legislature.171

(b) Strict Construction. It is a well-settled rule that, in the absence of express statutory provision to the contrary, penal statutes are to be strictly construed in favor of the accused. 172

160 Walker v. State, 7 Tex. App. 245; Adams v. New York, 192 U. S. 585.

17 Coolidge v. Choate, 11 Metc. (Mass.) 79, 82; Remmington v. State, 1 Or. 281; People v. Todd, 51 Hun, 446, 451, 4 N. Y. Supp. 25; People v. Plumsted, 2 Mich. 465.

The courts are not at liberty to construe a statute contrary to its ordinary and grammatical meaning, merely because such a construction is necessary to render the statute effective. If the legislature has failed to accomplish its object by the enactment of a penal statute, "it is to that authority, and not to the courts, that the public must look for a correction of the mistake." Remmington v. State, 1 Or. 281.

"The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest." Per Chief Justice Marshall, in U. S. v. Wiltberger, 5 Wheat. (U. S.) 76.

171 Cain v. State, 20 Tex, 355; Walker v. State, 7 Tex. App. 245; Albrecht v. State, 8 Tex. App. 313; Smith v. People, 47 N. Y. 330; People v. Potter, 47 N. Y. 375, 379; Noble v. State, 1 G. Greene (Iowa) 325. 172 U. S. v. Lacher, 134 U. S. 624; U. S. v. Wiltberger, 5 Wheat. (U. S.) 76; In re McDonough, 49 Fed. 360; Lescallett v. Com., 89 Va. 878, 17 S. E. 546; Warner v. Com., 1 Pa. 154, 44 Am. Dec. 114; State v. Bryant, 90 Mo. 534, 2 S. W. 836; Com. v. Hickey, 2 Pars. Sel. Cas. (Pa.) 317; Steel v. State, 26 Ind. 82; People v. Reynolds, 71 Mich. 343, 38 N. W. 923.

"There can be no constructive offenses, and, before a man can be

By this it is meant that they are to be construed strictly in those parts which are against the accused, but liberally in those parts which are in his favor.173 No person is to be made subject to such statutes by implication, and when doubts arise concerning their interpretation, they are to weigh only in favor of the accused.174 This does not mean, however, that a penal statute is to be construed so strictly as to defeat the obvious intention of the legislature. The courts are bound to give effect to the plain and obvious meaning of a statute, and not narrow it by construction.175

punished, his case must be plainly and unmistakably within the statute." U. S. v. Lacher, supra.

"The rule that penal statutes are to be construed strictly is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the main principle that the power of punishment is vested in the legislative, not in the judicial, department. It is the legislature, not the court, which is to define a crime, and ordain its punishment." Per Chief Justice Marshall, in U. S. v. Wiltberger, 5 Wheat. (U. S.) 76.

Criminal statutes are inelastic, and cannot by construction be made to embrace cases plainly without the letter, though within the reason and policy, of the law. State v. Lovell, 23 Iowa, 304.

173 State v. Bryant, 90 Mo. 534, 2 S. W. 836.

174 State v. Bryant, 90 Mo. 534, 2 S. W. 836; People v. Reilly, 50 Mich. 384, 15 N. W. 520.

175 Parkinson v. State, 14 Md. 184, 194; U. S. v. Wiltberger, 5 Wheat. (U. S.) 76; U. S. v. Hartwell, 6 Wall. (U. S.) 385; U. S. v. Morris, 14 Pet. (U. S.) 464; In re Coy, 31 Fed. 794; Keller v. State, 11 Md. 525, 69 Am. Dec. 226; Wedge v. State, 12 Md. 235; Gibbons v. People, 33 Ill. 443; People v. Plumsted, 2 Mich. 465; Com. v. Schmunk, 22 Pa. Super. Ct. 348.

In State v. Thatcher, 35 N. J. Law, 445, 452, it was said: "The rule of strict interpretation for criminal statutes does not hinder the court from searching for the legislative will; nor is the rule violated by giving words, in some cases, their full, or the more extended of two meanings, as the wider popular, instead of the narrow technical, one. Cases are not wanting where some elasticity has been given to criminal statutes in order to extend them to the mischief obviously aimed at."

This is well illustrated by the case of People v. Cotteral, 18 Johns. (N. Y.) 115, where a jail was held to be an "inhabited dwelling house," within the meaning of the statute against arson.

(c) Reason and Purpose of Statute.-When the meaning of a statute is doubtful, the reason and purpose of its enactment are to be taken into consideration in construing it, and determining the intention of the legislature. In other words, though a penal statute cannot be extended by construction, it should, if possible, receive such a construction as, when practically applied, will tend to suppress the evil which the legislature intended to prohibit.178 "The pre-existing law, the evils which arose out of it, and the remedy intended to be applied, are useful guides in the interpretation of a doubtful statute. A knowledge of the old law and the remedy applied by the new frequently points out the evil, and enables us to correct it."177 It is not permissible, however, to vary or add to the provisions of a statute on any consideration of its reason and purpose, if the meaning of the legislature is clear.178 All effects which are unnatural, absurd, or unjust must be held as implied exceptions, the same as if they had been expressed in words.

(d) Preamble and Title of Act.—It is a well-settled principle, applicable to penal statutes, as well as to others, that the preamble and the title though they are no part of an act may be resorted to as an aid in ascertaining the intention of the legislature.178a Thus, in a South Carolina case, where an act made it larceny for any person to fraudulently take from any field, not belonging to him, "any cotton, corn, rice, or other grain,” etc., without saying anything as to its being severed before the taking, but the act was entitled, "An act to make the fraudulent and secret taking of cotton, corn, and other grain, before severance

176 Smith v. State, 52 Ala. 384, 388; Gibbons v. People, 33 Ill. 443; People v. Forbes, 52 Hun, 30, 4 N. Y. Supp. 757; People v. Plumsted, 2 Mich. 465; People v. McKinney, 10 Mich. 54; State v. Sherman, 46 Iowa,

415.

177 State v. Stephenson, 2 Bailey (S. C.) 334.

178 State v. Stephenson, 2 Bailey (S. C.) 334; Warner v. Com., 1 Pa. 154, 44 Am. Dec. 114; People v. Plumsted, 2 Mich. 465; Ball v. State, 50 Ind. 595; Atkinson v. State (Tex. Cr. App.) 79 S. W. 31.

178a U. S. v. Fisher, 2 Cranch (U. S.) 358.

from the soil, larceny," the court took the title into consideration, and held that the act made a severance and taking of growing grain larceny, though it was not larceny at common law.179 The title, however, can never be used to set at naught the obvious meaning of the statute itself.179a

(e) Construction with Reference to the Common Law.Statutes frequently prescribe a punishment for an offense without defining it further than by giving it a name known to the common law, as "murder," "manslaughter," "rape," "robbery," "perjury," etc. In such a case the common law must be resorted to in order to determine the nature and elements of the offense.180 And when a statute uses other terms, which have a settled meaning in the common law, this meaning is to be given them, unless there is something to show that the legislature intended otherwise. Thus, the words "dwelling house," "breaking," and "entry," in statutes defining and punishing burglary, "burning," in statutes defining and punishing arson, "from the person," "or by violence or putting in fear,” in statutes defining and punishing robbery, etc., are, unless a contrary intention appears, to be given a construction in accordance with their meaning at common law.181

179 State v. Stephenson, 2 Bailey (S. C.) 334. 179a Patterson v. Bark Eudora, 190 U. S. 169.

180 State v. Camley, 67 Vt. 322, 31 Atl. 840; State v. Twogood, 7 Iowa, 252; U. S. v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494; In re Greene, 52 Fed. 104; U. S. v. Wilson, Baldw. 78, Fed. Cas. No. 16,730; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; U. S. v. Palmer, 3 Wheat. (U. S.) 610, 630; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, 716; Benson v. State, 5 Minn. 19.

If a statute punishes an offense without defining it further than by calling it by a name known to the common law, the common-law definition applies. Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833; State v. Twogood, 7 Iowa, 252; Com. v. York, 9 Metc. (Mass.) 93, 109; Houston v. Com., 87 Va. 257, 12 S. E. 385; Respublica v. Roberts, 1 Yeates (Pa.) 6, Mikell's Cas. 13; Smith v. State, 58 Neb. 531, 78 N. W. 1059; U. S. v. Carll, 105 U. S. 611, and other cases cited above.

181 Com. v. Humphries, 7 Mass. 242; Pitcher v. People, 16 Mich. 142;