Statutes defining and punishing offenses are also to be construed in accordance with the common law in relation to principals and accessaries, responsibility of children, insane persons, etc., and the necessity generally for a criminal intent.182

Further, if the statute enjoin an act to be done, or prohibit it, without pointing out any mode of punishment, an indictment as at common law will lie.182a

(f) Change of the Common Law.-It must be remembered, however, that it is competent for the legislature to create new offenses, and to extend the common-law definitions of particular offenses, so as to punish, under common-law names, acts not em

State v. Calhoun, 72 Iowa, 432, 34 N. W. 194, 2 Am. St. Rep. 252; Long v. State, 12 Ga. 293, 320; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Finch v. Com., 14 Grat. (Va.) 643; Nicholls v. State, 68 Wis. 416, 32 N. W. 543; Quinn v. People, 71 N. Y. 561, Beale's Cas. 789; Schwabacher v. People, 165 Ill. 618, 46 N. E. 809; Mary v. State, 24 Ark. 44, 81 Am. Dec. 60; People v. Gates, 15 Wend. (N. Y.) 159. See post, §§ 379, 409, 416.

In an Alabama case it was said: "When words are used by the legislature in relation to a matter or subject, which, when used in reference to the same subject at common law, have obtained a fixed and definite meaning, the inference is irresistible that they were intended to be used in the common-law sense." Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714.

182 Duncan v. State, 7 Humph. (Tenn.) 148; Rex v. Groombridge, 7 Car. & P. 582; Com. v. Knox, 6 Mass. 76; State v. Martindale, 1 Bailey (S. C.) 163; Stamper v. Com., 7 Bush (Ky.) 612; Com. v. Carter, 94 Ky. 527, 23 S. W. 344; post, §§ 56, 70.

Statutes punishing any person who should dispose of crops or other property after giving a mortgage thereon have been construed in the light of the common-law principle that the contract of an infant is voidable at his option, and it has been held that an infant's sale of property on which he has given a mortgage, being a disaffirmance and avoidance of the mortgage, does not render him liable under such a statute. State v. Howard, 88 N. C. 650; State v. Plaisted, 43 N. H. 413. Unless the plain intent of the statute creating an offense is to inflict punishment only on the person actually committing it, principals in the second degree and accessaries will be considered as within its terms. Com. v. Carter, 94 Ky. 527, 23 S. W. 344.

182a 4 Bl. Comm. 122; Keller v. State, 11 Md. 525, 69 Am. Dec. 226; State v. Fletcher, 5 N. H. 257.

C. & M. Crimes-5.

braced in the common-law definitions.183 And it follows that identity in the name of offenses at common law and under a statute does not necessarily imply that the same elements, and no others, enter into both.184 Whether a statutory offense is the same as an offense known to the common law must depend upon the language of the particular statute, and the intention of the legislature.

(g) Prior Judicial Construction.-When the legislature enacts a statute which is substantially the same as one which has already received a judicial construction, it will be presumed to have known that construction, and to have intended to adopt it.185

(h) Construction as a Whole-Giving Effect to All Parts.— In construing a statute, the intention of the legislature is not to be ascertained from any particular expression or section, but from the whole act. It is a cardinal principle that a statute is to be construed as a whole, and effect is to be given, if possible, to every section and clause. 186

(i) Construction of Statutes Together.--In ascertaining the meaning of a particular statute, all statutes in pari materia are to be taken into consideration. In other words, all statutes on the same subject, whether enacted on the same day, or on different days of the same session, or at different sessions, are to be taken together as one law. 187

183 Ante, § 14.

184 People v. Most, 128 N. Y. 108, 27 N. E. 970.

185 O'Byrnes v. State, 51 Ala. 25; State v. Brewer, 22 La. Ann. 273. 186 People v. Ah Ho, 1 Idaho, 691; People v. Potter, 47 N. Y. 375, 379; People v. Todd, 51 Hun, 446, 451, 4 N. Y. Supp. 25; Parkinson v. State, 14 Md. 184, 195, 74 Am. Dec. 522; State v. Babcock, 21 Neb. 599, 33 N. W. 247; State v. Sherman, 46 Iowa, 415.

187 Cain v. State, 20 Tex. 355, 362; State v. Hope, 15 Ind. 474; State v. Rackley, 2 Blackf. (Ind.) 249; Keller v. State, 11 Md. 525, 69 Am. Dec. 226; Myers v. State, 3 Sneed (Tenn.) 98; Howlett v. State, 5 Yerg. (Tenn.) 144, 151; Smith v. People, 47 N. Y. 330; State v. Babcock, 21 Neb. 599, 33 N. W. 247; People v. McKinney, 10 Mich. 54; State v. Sherman, 46 Iowa, 415.

Statutes in relation to the same offense must be taken together, and

(j) Construction in Connection with the Constitution.—Unless a contrary intention clearly appears, it is to be presumed that the legislature intended a statute to be in accordance with constitutional provisions, and statutes, therefore, are to be construed in connection with the constitution, and, if possible, so as to be in accordance therewith. "It is a well-recognized principle that courts will not so construe a statute as to render it unconstitutional, if any other reasonable construction can be placed upon it, which will render it effective and legal."188

(k) Expression of One Thing an Exclusion of Others.—The maxim, expressio unius est exclusio alterius, applies in the construction of penal statutes. Thus, where a statute provided that certain games of chance might be kept on being licensed, and declared that certain others should be unlawful, it was held that all games not mentioned in the statute were legalized.189

(1) Special Enumeration Followed by General Words.—In the construction of penal statutes, the courts are also governed by the general rule that, "where 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 construed as if the matters to which they relate were embraced in a single statute. State v. Wilbor, 1 R. I. 199, 36 Am. Dec. 245.

In Indiana, a statute approved June 10, 1852, provided that any person who should be the keeper of "any gaming apparatus," for the purpose of winning or gaining any article of value, should be deemed a professional gambler, and subject to punishment in the penitentiary. Another statute, approved on June 14th, declared that any person who should be the keeper or exhibitor of "any gaming table, roulette,

or billiard table," for the purpose of winning any article of value thereon, should be liable to a fine. In State v. Hope, 15 Ind. 474, it was held that these two statutes must be construed together, and that, as the last-mentioned statute specially prohibited the keeping of a billiard table for gaming, and made it a misdemeanor only, the keeping of such a table was not a felony, within the first-mentioned statute, though it might have been so regarded except for the second statute.

188 People v. Peacock, 98 Ill. 172, 177; Adams v. New York, 192 U. S. 585. And see Eskridge v. State, 25 Ala. 30.

189 People v. Goldman, 1 Idaho, 714.

referring to matters ejusdem generis with such class. "190 Thus, where a statute provided that "no tradesman, artificer, workman, laborer, or other person whatsoever," should exercise his ordinary calling on Sunday, it was held that the words "other person whatsoever" were intended to refer to persons of like denomination with those specially mentioned, and not to all persons, without regard to their occupation, and that the statute, therefore, did not apply to farmers.191

This rule of construction has also been applied to statutes enumerating things of a particular class, and concluding with general words,—as statutes against gaming, enumerating particular games or devices, as faro, roulette, etc., and concluding with the words, "or any other device." These words have generally been construed as referring to such devices only as are of like kind with those enumerated.192

(m) Punctuation. The punctuation of a statute is not necessarily to be considered in ascertaining its meaning. It may always be disregarded in order to make the statute conform to the evident intention of the legislature.193

190 Broom, Leg. Max. 625; Rex v. Inhabitants of Whitnash, 7 Barn. & C. 596; State v. Bryant, 90 Mo. 534, 2 S. W. 836.

191 Rex v. Inhabitants of Whitnash, 7 Barn. & C. 596. In this case, Bayley, J., remarked that if all persons were meant, there was no need of the specific enumeration.

192 State v. Bryant, 90 Mo. 534, 2 S. W. 836; State v. Hardin, 1 Kan. 474; Stith v. State, 13 Ark. 680; Marquis v. City of Chicago, 27 Ill. App. 253; State v. Shaw, 39 Minn. 153, 39 N. W. 305; Nuckolls v. Com., 32 Grat. (Va.) 884; People v. Todd, 51 Hun, 446, 4 N. Y. Supp. 25. Compare State v. Lewis, 12 Wis. 434.

There are many other statutes in the construction of which this rule has been applied. See Shirk v. People, 121 Ill. 61, 11 N. E. 888.

193 "In giving construction to a statute, the punctuation is entitled to small consideration, for that is more likely to be the work of the engrossing clerk, or the printer, than of the legislature." Morrill v. State, 38 Wis. 428, 434. See, also, Schriedley v. State, 23 Ohio St. 130, 139; State v. Pilgrim, 17 Mont. 311, 42 Pac. 856.

Thus, in Schriedley v. State, supra, a statute punishing the receiving of goods "that have been stolen or taken by robbers" was construed as covering the receiving of goods stolen in any way, as well as of goods

48. Intention to Make Prohibited Act a Crime.

It is not always clear whether the legislature, in prohibiting an act and imposing a penalty for its commission, intended to make the act a crime, and to require the penalty to be imposed in a criminal prosecution, instead of merely subjecting the person doing the act to liability in a civil action.194 Of course the intention of the legislature must govern, and its intention is to be gathered from the whole act, the terms used in it, and the purpose of the prohibition. It may be laid down, as a general rule, that if the purpose is to protect the public generally, and the terms used in the statute are such as are generally employed in a penal statute, like the words "offense," "fine," "prosecution," "conviction," "punishment," etc., the statute should be construed as making the act a crime, and rendering the doer liable to a criminal prosecution.195 If the stat

taken by robbery, though to construe it according to the punctuation, there being no comma after word "stolen," it would apply only to goods stolen by robbers or taken by robbers.

194 In Wisconsin it was held that a statute subjecting to a pecuniary penalty only any person who should willfully obstruct a public highway, to be recovered in an action brought in the name of the state, did not create a criminal offense, and that an action by the state to recover the penalty was a civil action. State v. Hayden, 32 Wis. 663; State v. Smith, 52 Wis. 134, 8 N. W. 870.

As to the act of congress excluding Chinese from the United States, see U. S. v. Hing Quong Chow, 53 Fed. 233, Beale's Cas. 123.

195 In State v. Horgan, 55 Minn. 183, 56 N. W. 688, a statute provided that whoever should sell or keep for sale an article in imitation of butter, etc., should be subject to the payment of a "penalty" of $50, and, for a second "offense," a penalty of $100, "to be recovered, with costs, in any court of competent jurisdiction." In another section, possession of the article "prohibited" by the act was made prima facie evidence that the same was kept in "violation" thereof. In another section, the word "fine" was used instead of "penalty," and in another, proceedings to enforce the law were spoken of as "prosecutions." It was held that the act prohibited was a misdemeanor, and that the penalty was to be imposed as a fine in a criminal prosecution. See, also, State v. Marshall, 64 N. H. 549, 15 Atl. 210.

In Oregon, a statute provided that county warrants indorsed, "Not paid for want of funds," should bear interest from the date of such