v. Rowley, 2 La. Ann. 890; Reynolds v. Rowley, 3 Rob. 201, 38 Am. Dec. 233; Polleys v. Ocean Ins. Co., 14 Me. 141; Smith v. Bodfish, 39 Me. 136; Hartman v. Thompson, 104 Md. 389, 118 Am. St. Rep. 422, 65 Atl. 117, 10 Ann. Cas. 92; Canadian Bank of Commerce v. Coumbe, 47 Mich. 358, 11 N. W. 196; North v. Metz, 57 Mich. 612, 24 N. W. 759; Skipwith v. Robinson, 24 Miss. 688; Caldwell v. Garner, 31 Mo. 131; Pomeroy v. Fullerton, 131 Mo. 581, 33 S. W. 173; Vail v. Judson, 4 E. D. Smith, 165; Budlong v. Van Nostrand, 24 Barb. 25; Card v. New York & H. R. Co. 50 Barb. 39; Morris v. Brooklyn Heights R. Co., 20 App. Div. 557, 47 N. Y. Supp. 242; Moore v. Rankin, 33 Misc. Rep. 749, 67 N. Y. Supp. 179; Williams v. Williamson, 28 N. C. 281, 45 Am. Dec. 494; Craven v. Russell, 118 N. C. 564, 24 S. E. 361; Turnbull v. O'Hara, Yeates, 446; Northwestern Mut. Life Ins. Co. v. Roth, 87 Pa. 409; Clark v. Baker, 2 Whart. 340; Raiford v. French, 11 Rich. 367; McAlpin v. Cassidy, 17 Tex. 449; Bigham v. Carr, 21 Tex. 142; Stiles v. Danville, 42 Vt. 282; Lake v. Tyree, 90 Va. 719, 19 S. E. 787; Hall v. Union Cent. Life Ins. Co., 23 Wash. 610, 83 Am. St. Rep. 844, 63 Pac. 505, 51 L. R. A. 288; American Copper, Brass & Iron Works v. GallandBurke Brewing & Malting Co., 30 Wash. 178, 70 Pac. 236; Small v. McGovern, 117 Wis. 608, 94 N. W. 651; Blight v. Ashley, Fed. Cas. No. 1541, Pet. C. C. 15; Kenah v. The John Markee, Jr. (D. C.), 3 Fed. 45.

But where evidence of a deceased agent's statements were admitted, a letter written by him after the termination of his agency on the same subject matter was also admissible to discredit the alleged oral statements: Turnbull v. O'Hara, 4 Yeates, 446.

These rules are equally applicable when the principal is a corporation: Thomas v. Rutledge, 67 Ill. 213; Card v. New York & H. R. Co., 50 Barb. 39; Moore v. Rankin, 33 Misc. Rep. 749, 67 N. Y. Supp. 179; Brown v. Dutchess County Mut. Ins. Co., 64 App. Div. 9, 71 N. Y. Supp. 670; Sterling v. Marietta & Susquehanna Trading Co., 11 Serg. & R. 179; Shaw v. Susquehanna Boom Co., 125 Pa. 324, 17 Atl. 426; Hall v. Union Cent. Life Ins. Co., 23 Wash. 610, 83 Am. St. Rep. 844, 63 Pac. 505, 51 L. R. A. 288; American Copper etc. Works v. Galland-Burke Brewing & Malting Co., 30 Wash. 178, 70 Pac. 236; Small v. McGovern, 117 Wis. 608, 94 N. W. 651.

STATE v. PRATHER.

[79 Kan. 513, 100 Pac. 57.]

STATUTORY CONSTRUCTION.-The Rule that Penal Statutes are to be Construed strictly has its origin in the tender regard of the law for the rights of the individual, and rests also on the doctrine that the power of punishment is vested in the legislature and not in the courts. (By the editor.) (p. 340.)

STATUTORY CONSTRUCTION.-Strict Construction of a Penal Statute means that the language is not to be extended by implication so as to embrace cases or acts not clearly within the prohibition of the statute. (By the editor.) (p. 340.)

STATUTORY CONSTRUCTION.-The Doctrine of Ejusdem Generis is applied in all cases where there is doubt as to the intention of the legislature. As a rule of construction, it means that where general words follow particular ones in a statute, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified. But this rule always yields to the manifest legislative intention. (By the editor.) (p. 341.)

SUNDAY.-The Playing of Baseball on Sunday is not prohibited by section 2258 of the General Statutes of 1901, which provides that "every person who shall be convicted of horseracing, cock-fighting, or playing at cards or game of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars." (pp. 339, 340, 344.)

(Syllabi by the court unless stated to be by the editor.)

Fred S. Jackson, attorney general, J. R. Thorne, county attorney, and J. W. Parker, for the state.

C. L. Randall, for the appellant.

514 PORTER, J. The county attorney of Johnson county filed a complaint in the district court charging that "on the fourteenth day of July, A. D. 1907, the same being the first day of the week, commonly called Sunday, . . . . one Ernest Prather did then and there unlawfully and willfully, with divers other persons whose names are to your informant and to affiant unknown, play at and play a certain game, to wit, a game of baseball, the same being played with balls and bat and with nine players on one side matched against nine players on the other side." The defendant was arrested on the charge. A motion to quash the complaint on the ground that it fails to charge an offense under the laws was denied. A jury being waived, there was a trial to the court and a judgment of conviction, from which the defendant appeals.

The single question is whether Sunday baseball is prohibited by law. This involves the construction of section 2258 of the General Statutes of 1901, under which the defendant was prosecuted. It reads: "Every person who shall be convicted of horseracing, cock-fighting, or playing at cards

or game of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars."

The state contends that the words "game of any kind" include baseball. On the other hand, the contention is that the statute must be construed strictly, and 515 that the meaning of the general words "game of any kind" is limited by the particular words which precede them, and that they include only games of the class or species to which horseracing and cock-fighting belong.

The rule that penal statutes are to be construed strictly has its origin in the tender regard which the law has for the rights of the individual, and rests also on the doctrine that the power of punishment is vested in the legislature and not in the courts: United States v. Wiltberger, 18 U. S. 76, 5 L. ed. 37; State v. Woodruff, 68 N. J. L. 89, 52 Atl. 294; 26 Am. & Eng. Ency. of Law, 658. Strict construction of a penal statute means that the language is not to be extended by implication so as to embrace cases or acts not clearly within the prohibition of the statute.

"Game" is defined as "a contest for success or superiority in a trial of chance, skill or endurance, or of any two or all three of these combined": Century Dictionary. And the word "is very comprehensive, and embraces every contrivance or institution which has for its object to furnish sport, recreation, or amusement": 4 Words and Phrases Judicially Defined, 3036. In penal statutes the word "game," however, is frequently used as synonymous with the word "gaming." In Bagley v. State, 20 Tenn. 486, it was held that the word "game" in an indictment for gaming is as strong and expressive as the word "gamble," and may be used in an indictment with the same effect, because it is sufficient to characterize an act as unlawful gaming.

In the broad sense in which the word is often used it includes baseball. Giving to the language this interpretation, the statute necessarily applies to every contrivance or institution which falls within the general term. This construction would make the statute apply to every game-to authors, whist, chess, checkers, backgammon, and cribbage, even when played within the privacy of one's home, and to croquet, basket-ball, tennis, and golf, whether played in public or on private 516 grounds. It hardly seems probable that it could have been the intention of the legislature to enact a provision so drastic in its terms as to make the playing of all games on Sunday misdemeanors, without regard to their character,

and with no limitations or reservations with respect to the place where, or the circumstances under which, they might be indulged in.

The doctrine of ejusdem generis is applied in all cases where there is doubt as to the intention of the legislature, and, as a rule of statutory construction, is stated to be that where general words follow particular ones in a statute the general words will be limited in their meaning, or restricted to things of like kind and nature with those specified. This rule, however, always yields to the manifest legislative intention: State v. Bancroft, 22 Kan. 170. In State v. Hardin, 1 Kan. 474, it was applied to a statute which declared that "every person who shall set up or keep any table or gambling device, commonly called A B C, faro bank, E. O. roulette, equality, or any kind of gambling-table or gambling device, adapted, devised and designed for the purpose of playing any game of chance, for money or property," etc.: Comp. Laws 1862, c. 33, sec. 230. The question presented was whether a pack of cards was a gambling device within the meaning of that act. It was said in the opinion:

"A 'pack of cards,' though, without doubt, frequently used for the purpose of gambling, is also, and probably much more frequently, used for the purpose of mere amusement, like draughts, checkers, chess, billiards, nine-pins and dominoes. It will hardly be claimed, we think, that an indictment, framed under this section, for permitting a gambling device, to wit, a 'checker-board,' or a 'chess-board,' could have been sustained, because those implements, although manifestly in some sense 'adapted' to the forbidden purpose, are not within the meaning of the law, either devised or designed for that purpose. . . . . It must, we think, be obvious that it was the intention of the legislature in using the general words, after enumerating 517 specifically certain of the most notorious and obnoxious of the implements used for the forbidden purpose, to include others of similar character, and, like them, designed solely for gambling purposes. . . . And if the legislature intends to forbid all gambling and betting upon games of chance, it is plain that more certain, definite and comprehensive language should be made use of to evidence such intent": Pages 477, 478.

The statute under which defendant was prosecuted was first adopted into the Kansas laws from the laws of Missouri by the so-called bogus legislature of 1855. It was repealed in 1859, together with all the other laws of 1855: Kansas Gen. Laws Ter. 1859, c. 89, sec. 1. It was re-enacted in 1868

(Gen. Stats. 1868, c. 31, sec. 257), but the language has remained the same and is identical with the statute passed in Missouri in 1835, which is still in force in that state. In St. Louis Agl. & Mech. Assn. v. Delano, 37 Mo. App. 284, this statute was construed. In the opinion, which was written by Judge Seymour D. Thompson, it was said: "Section 1580 prohibits horseracing, cock-fighting, or playing cards or games of any kind on the first day of the week, commonly called Sunday; but this court is of opinion that this prohibition is against games of chance or other games of an immoral tendency, and that it does not involve a prohibition of athletic games or sports, which are not of an immoral tendency, but which tend to the physical development of the youth, and are rather to be encouraged than discouraged. Penal statutes are to be construed strictly. It is an established principle of construction that where general words follow particular ones, they are to be construed as applicable to the things or persons particularly named. . . . . The word 'game' is no doubt susceptible of being used in a sense large enough to embrace any contrivance or institution intended to furnish sport, recreation or amusement. But this is not its usually understood meaning when employed in a statute which constitutes it an indictable offense. In such a case it is usually understood to imply some species of gambling: 2 Wharton's Criminal Law, sec. 1465b": Pages 289, 290.

518 This case was taken to the supreme court, and the judgment of the court of appeals was affirmed: St. Louis Agl. & Mech. Assn. v. Delano, 108 Mo. 217, 18 S. W. 1101. The supreme court in discussing the statute used this language:

"But these prohibitions are evidently leveled against sports and games that have a demoralizing tendency, and do not extend to mere athletic sports. Besides, this section is penal, and, therefore, to be strictly construed: Howell v. Stewart, 54 Mo. 400; Fusz v. Spaunhorst, 67 Mo. 256.

"But, further: In this instance, the words, 'or games of any kind,' fall under the rule which prescribes that where general words follow particular ones they are to be construed as applicable to things or persons of a like nature: State v. Bryant, 90 Mo. 534, 2 S. W. 836, and cases cited; St. Louis v. Laughlin, 49 Mo. 559": Page 221.

The same question was before the supreme court of that state again in Ex parte Neet, 157 Mo. 527, 80 Am. St. Rep. 638, 57 S. W. 1025, and the same conclusion was reached. In the opinion the court said: