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itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the law-maker must govern in the construction of penal as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.1 The maxim is not to be so applied 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. 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 very 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. To determine that a case is within the intention of a statute its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason and mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because of equal atrocity, or of a kindred character, with those which are enumerated." 2

§ 350. A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within

1 Walton v. State, 62 Ala. 197; Huffman v. State, 29 id. 40; Crosby v. Hawthorn, 25 id. 221; Holland v. State, 34 Ga. 455; Keller v. State, 11 Md. 525; United States v. Athens Armory, 35 Ga. 344; American Fur Co. v. United States, 2 Pet. 367; The Schooner Harriet, 1 Story, 251; The Schooner Industry, 1 Gall. 114.

2 United States v. Wiltberger, 5 Wheat. 76, 95. See Jenkinson V. Thomas, 4 T. R. 665; Rex v. Handy, 6 id. 286; Warne v. Varley, id. 443; Martin v. Ford, 5 id. 101; Fletcher v. Lord Sondes, 3 Bing. 580; Hintermister v. First Nat. Bank, 64 N. Y. 212; United States v. Huggett, 40 Fed. Rep. 636.

the letter, though within the reason and policy, of the law. Although a case may be within the mischief intended to be remedied by a penal act, that fact affords no sufficient reason for construing it so as to extend it to cases not within the correct and ordinary meaning of its language. And as a general rule where a penalty is affixed by a statute to an act or omission, such penalty is the only punishment or loss incurred by the guilty party. To constitute the offense the act must be both within the letter and spirit of the statute defining it. Penal statutes can never be extended by mere implication to either persons or things not expressly brought within their terms. Where an act prohibited the sale of intoxicating liquors in the vicinity of certain manufacturing establishments in three named counties, it was held to have application only to such establishments as were then in being." It is a principle in the construction of statutes that the legislature does not intend the infliction of punishment, or to interfere with the liberty or rights of the citizen, or to grant exceptional powers, privileges or exemptions by doubtful language; but will in such cases express itself clearly, and intends no more than it so expresses. Abbott, J., said: "It would be extremely wrong that a man should, by a long train of conclusions, be reasoned into a penalty when the express words of the act of parliament do not authorize it." This strictness does not exclude accessories before the fact, though not

1Id.; State v. Lovell, 23 Iowa, 304; People v. Peacock, 98 Ill. 172; Lair v. Killmer, 25 N. J. L. 522; Merrill v. Melchior, 30 Miss. 516; Foote v. Vanzandt, 34 id. 40; Andrews v. United States, 2 Story, 202; Shaw v. Clark, 49 Mich. 384; Hall v. State, 20 Ohio, 7, 16; Van Buren v. Wylie, 56 Mich. 501; Graff v. Evans, L. R. 8 Q. B. Div. 377; Haynie v. State, 32 Miss. 400.

Robinson, L. R. 5 C. P. at pp. 513, 514; Dewey v. Goodenough, 56 Barb. 54; East India Interest, 3 Bing. at p. 196.

5 People v. Peacock, supra; Hall v. State, 20 Ohio, 8; Grooms v. Hannon, 59 Ala. 510; Southwestern R. R. Co. v. Cohen, 49 Ga. 627; United States v. Winn, 3 Sumn. 209; The Schooner Harriet, 1 Story, 251; State v. Graham, 38 Ark. 519; Foster v. Rhoads,

2 United States v. Sheldon, 2 Wheat. 19 John. 191. 119.

In re International Patent P. etc. Co. 37 L. T. (N. S.) 351; L R. 6 Ch. Div. 556.

4 Lair v. Killmer, supra; Britt v.

6 Hall v. State, 20 Ohio, 8; United States v. Paul, 6 Pet. 141. 74 Inst. 332.

8 Rex v. Bond, 1 B. & Ald. at p. 392.

named in the statute.

Nor does it preclude the application of common sense to the terms made use of in the statute to avoid an absurdity which the legislature ought not to be presumed to have intended. Though a statute may be of a class which must be construed strictly, it is nevertheless to be so construed as to effect the intention of the legislature. Effect is to be given to the plain meaning of the language, and strict construction is to be applied only where the effect is reasonably open to question. The rule that penal statutes are to be construed strictly is not violated by allowing their words to have their full meaning, or even the more extended of two meanings, where such construction better harmonizes with the context.1

§ 351. A few cases will be given illustrative of the principle of strict construction: Driving cattle was held not within the true meaning of an act prohibiting their transportation." A statute which provides a penalty for resisting an officer "in serving or attempting to execute any legal writ, rule, order or process whatever," does not embrace the case of resisting an officer who was attempting to arrest, without any warrant, writ or process of any kind, a person who was breaking the public peace. A penalty provided against a mortgagee for failing to discharge a paid mortgage cannot be extended to the assignee of a mortgage. When either of two constructions can be given to a statute and one of them involves a forfeiture the other is to be preferred. In a penal act the word "and" cannot be read as "or." The expression "this act" cannot be taken to include another act in pari materia.10 The words "domestic distilled spirits" in an inspection law containing a penalty or forfeiture were construed to mean spirits distilled within the state, and this as matter of law, not to be

I Walton v. State, 62 Ala. 197.

2 Commonwealth v. Loring, 8 Pick. 373; House v. House, 5 Har. & J. 125; Smith v. State, 17 Tex. 191.


6 State v. Lovell, 23 Iowa, 304.

7 Grooms v. Hannon, 59 Ala. 510.

8 Vatel's 20th Rule of Constrution; Farmers', etc. Nat. Bank v. Dearing,

3 Wilson v. Wentworth, 25 N. H. 91 U. S. 29, 35; Renfroe v. Colquitt,

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modified by any proof of usage giving it a broader scope. It was held also not to include spirits rectified there but manufactured in another state. A statute prescribing a penalty for "any officer taking greater or other fees" than are expressed in the fee-bill was held not applicable to any person out of office for services while in office. The word "sale" in a penal statute does not include an exchange. A statute making punishable "the offense of insurrection or an attempt at insurrection" does not by these words apply to an attempt to incite insurrection. In the construction of an act imposing penalties upon gambling, it was held that half-pennies tossed up at a game called toss did not come within the words "instruments of gaming;" that deposit of half a sovereign as a bet on a dog race was not "betting with a coin as an instrument of gaming at a game of chance." A statute forbade an alderman to be clerk to the justices in any borough, and forbade the clerk to the justices in any borough to be directly or indirectly interested in any prosecution. A penalty by the same section was imposed on any person, being an alderman, who should act as clerk to the justices of a borough or should otherwise offend in the premises. The defendant was clerk to the justices, and had done the prohibited act; he had been interested in a prosecution; but it was held that the penalty clause only applied to those who are in the offices there specified, among which the clerk to the justices was not included. The court adhered to the grammatical construction. Coleridge, J., said: "There are two distinct prohibitory provisos, and it is quite obvious that the intention was to annex the penalty to the violation of each. But this cannot be done if a grammatical construction be given to the words used. The only way in which it can be done is by inserting words any person who' before 'shall otherwise offend.' But I never heard that it was allowable to insert words for the purpose of extending a penal clause." "

1 Commonwealth v. Giltinan, 64 Pa. St. 100.

2 Gallagher v. Neal, 3 P. & W. 183.
3 Gunter v. Leckey, 30 Ala. 591.
4 Gibson v. State, 38 Ga. 571.


5 Watson v. Martin, 34 L. J. M. C. 50.

6 Hirst v. Molesbury, L. R. 6 Q. B. 130.

7 Coe v. Lawrance, 1 E. & B. 516.

§ 352. A statute provided that "all notes or conveyances whatever, in which the consideration shall be for any money or goods won by playing at cards, dice, or any other game whatever, or by betting on the sides or hands of such as are gaming, or by any betting or gaming whatever, shall be void and of no effect." 1 . In Shaw v. Clark the question was whether a deal in "options" was within the statute. The court by Cooley, J., said: "In common speech gaming is applied to play with stakes at cards, dice or other contrivance, to see which shall be the winner and which the loser. A contract for the purchase of options is not gaming within this meaning of the term. In form it is the purchase and sale of a commodity to be delivered at a future day, and it only resembles gaming in that the parties take a chance of gain or loss without intending that the sale which they nominally make shall ever become a legitimate business transaction. Betting in common speech means the putting of a certain sum of money or other valuable thing at stake on the happening or not happening of some uncertain event. A purchase of options is not betting in this sense, though it resembles it in the fact that risks are taken on uncertain events, and that the tendency to those engaged in it is demoralizing. The statute in terms forbids betting and gaming, and it contains penal provisions for the punishment of those who engage in them; but penal statutes are not enlarged by intendment, and acts not expressly forbidden by them cannot be reached merely because of their resemblance, or because they may be equally and in the same way demoralizing and injurious." Those who contend that a penalty may be inflicted must show that the words of the act distinctly express that under the circumstances it has been incurred. They must fail if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty.1


§ 353. There is a like close interpretation whether, as in the preceding instances, the provision relates to the elements of the offense, or concerns the penalty or the procedure." Where 1 Sec. 1996, Comp. Laws of Mich. L. R. 9 C. P. 7; The Gauntlet, L. R. 4 2 49 Mich. 384. P. C. 191.

See Smith v. State, 17 Tex. 191; State v. Rorie, 23 Ark. 726.

Brett, J., in Dickenson v. Fletcher,

5 Rex v. Hymen, 7 T. R. 536; Walwin v. Smith, 1 Salk. 177; Partridge v. Naylor, Cro. Eliz. 480; Commonwealth v. Keniston, 5 Pick. 420.

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