State v. Schuchmann

DIVISION TWO. Sherwood, J. On change of venue from St. Louis county circuit court, the defendant was tried in the Franklin circuit court upon an indictment, the material portions of which are as follows: — 115 — • “That Joseph Turner and Ruben Troller on the .second day of July, A. D. one thousand eight hundred and ninety-three, at the county of St. Louis, in the state of Missouri, did then and there feloniously and burglariously break into and enter a certain chicken house building, the property then of William C. Price, by forcibly pushing and bursting open an outer window of the same, and with the intent thereby then and .there feloniously and burglariously to take, steal, and carry away certain property, consisting of divers live chickens and valuable things, which were then and there being kept and deposited in said building; ■ and then and there did unlawfully and burglariously take, steal, and carry away, from and out of said building of the said valuable things, the property then of the said William C. Price, divers live chickens in number and ■of value to these jurors unknown. “And the jurors aforesaid upon their oath aforesaid, do further present and charge that before the said felonious burglary and larceny was committed as -aforesaid, one Edward Sehuchmann did in the said county and on the said day, unlawfully, feloniously, and burglariously advise, incite, procure, and aid the said persons,. Joseph Turner and Ruben Troller to commit the said crimes and felony, against the peace .and dignity of the state. R. Lee Mudd, “Pros. Att’y of St. Louis Co., Mo.” The trial resulted in the conviction of the defendant, his punishment being assessed at imprisonment in ■the penitentiary for the term of three years. 1. On the sixteenth of March, the time granted •defendant in which to file his bill of exceptions having expired, the trial judge was powerless on the nineteenth -of March to extend by his order the time for filing the bill of exceptions, as we have over and over again ■decided. — 116 — 2. The section of the statute upon which the foregoing indictment is framed is as follows: “Every person who shall be convicted of breaking and entering: First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or* other building, or any boat or vessel, or any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise, or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” R. S. 1889, sec. 3526. Under this section, the indictment, if based on the first clause thereof, must charge that the building in which the burglary was committed was £ ‘toithin the curtilage of the dwelling house.” Without,such averment the indictment would be fatally defective, because of not containing the descriptive words the statute contains. If the indictment be based on the second clause of the section, then it is bad because the rule as to matters ejusdem generis applies — that good rule of construction which requires 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 referring to matters ejusdem generis with such class.” Broom, Leg. Mas. [6 Ed.]'*625. Here the term “chicken house building” is not of the same kind or class as those previously mentioned, and therefore can not fall within the definition of the term “other buildings.” State v. Bryant, 90 Mo. 534, and cases cited. See, also, State ex rel. v. Seibert, 123 Mo. loc. cit. 438. — 117 — The indictment is therefore bad under either clause of the section. This view of the matter is not in accord with State v. Hecox, 83 Mo. 532, where a burglary in a “granary” was committed, and there was no allegation that it was within the curtilage; but for reasons already given, we d.o not regard that case as sound law and consequently will not follow it. Moreover, the statute is both penal and criminal, and therefore to be strictly construed; construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor; that is, for their ease and exemption. No person is to be made subject to such statutes by implication, and when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused. Bishop, Stat. Cr. [2 Ed.], secs. 193, 194, 227. The defects mentioned in the indictment, being fatal in their character, may be raised and considered for the first time in this court, and of our own motion. State v. Meyers, 99 Mo. loc. cit. 112, and cases cited. When writing the above, I had supposed the doctrine so well settled in regard to the proper construction to be given to the meaning of general words which follow those which designate or create a particular class or classes of persons or things, that I thought it needless to do but little more than barely to refer to some of the authorities which announced the time-worn maxim, ejusdem generis. But it seems from recent suggestions that I erred in so thinking, and so I will refer to some “wise saws and modern instances” illustrating the hackneyed position heretofore taken. Thus in Reg. v. Whitnash, 7 Barn. & C. 596, Stat. Car. II, chapter 7, section 1, provided, “that no trades — 118 — man, artificer, workman, laborer, or other person whatsoever” should exercise his ordinary calling on the Lord’s day. And thereupon it was ruled that the words “other person” did not include a farmer, because not of like denomination with those specifically mentioned; Bayley, J., remarking that if all persons were meant, there was no need of the specific enumeration. So in Ex Parte Hill, 3 C. & P. 225, under the common law rule that where general words follow particular and specific words, the former must be confined to things of the same kind, it was ruled that a “Util” was not included under the words “other cattle,” as used in a statute which made it indictable for any person to “wantonly and cruelly beat, abuse, or ill treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep, or other cattle,” the court saying: “Horse, mare, and gelding, are one class; ox, cow, heifer, and steer, are another class; and * * * the bull is not included in this act.” Sandiman v. Breach, 7 B. & C. 96, was an action of assumpsit brought to recover the expense of hiring a postchaise, the defendant having failed to convey plaintiff in his stagecoach as he had contracted to do. For the defense it was contended that the contract was illegal, because it was to be performed on the Sabbath. Lord Tendekden did not approve this contention and in delivering the unanimous opinion of the court of queen’s bench said: “It was objected thatthe plaintiff; in this case could not recover, because the contract, for the breach of which the action was brought, was to have been performed on the Sabbath day, and that it could not legally be performed on that day. But upon looking into the statutes (3 Car. 1, chap. 1, and 29 Car. 2, chap. 7), upon which the objection was founded, we are of opinión that this case does not come within — 119 — them. * * * By the first of these, the 3 Car. 1, chapter 1, it was enacted, that ‘no carrier with any horse, nor wagon-man with any wagon, nor cartman with any cart, nor wainman with any wain, nor drover with any cattle, shall by themselves, or any other, travel on the Lord’s day;’ and by the. 29 Car. 2, chapter?, that ‘no tradesman, artificer, workman, labourer, or other person or persons, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord’s day.’ It was contended, that under the words ‘other person or persons’ the drivers of stagecoaches are included. But where general words-follow particular ones, the rule is to construe them as applicable to persons ejusdem generis. Considering, then, that in the 3 Car. 1, chapter 1, carriers of a certain description are mentioned, and that in the 29 Car. 2, chapter 7, drovers, horse-coursers, wagoners, and travelers of certain descriptions, are specifically mentioned, we think that the words ‘other person or persons’ can not have been used in a sense large enough to include the owner and driver of a stagecoach.” That case was approvingly cited and followed in St. Louis v. Laughlin, 49 Mo. 559, where a question arose as to whether a license tax could be imposed on the profession of a lawyer. The charter, under which the city authorities proceeded in imposing the tax, provided as follows: “The mayor and city council shall have power within the city, by ordinance not inconsistent with any law of this state, to license, tax, and regulate auctioneers, grocers, merchants, retailers, hotels, boarding houses, tenement houses, office buildings, •public halls, public grounds, concerts, photographers, artists, agents, porters, runners, drummers, public lecturers, public meetings and shows, real estate agents and brokers, horse and cattle dealers, beerhouses, patentright dealers, inspectors and gaugers, stockyard — 120 — proprietors, examiners of titles, conveyancers, mercantile agents, insurance companies, banking or other corporations or institutions, street railroad cars, hackney carriages, omnibuses, carts, drays, and all other vehicles, and all other business, trades, avocations, or professions whatever.” And it was held, following the ruling in the case just previously- cited, that the city had no power to impose a license tax on a lawyer, notwithstanding the charter as quoted, concludes with the words "all other business, trades, avocations, or professions whatever.” The authority of Laughlin’s case was recognized in St. Louis v. Bowler, 94 Mo. loc. cit. 633, and has been uniformly followed by the courts of appeals. Knox City v. Thompson, 19 Mo. App. 523; State ex rel. v. Taaffe, 25 Mo. App. 567; Hannibal v. Price, 29 Mo. App. 280; St. Joseph v. Porter, Ibid. 605. The only reason why we did not make the same ruling in Bolder’s case as in Laughlin’s, was that the charter had been amended, so that it had become much more comprehensive in its terms, the concluding words being: “All occupations, professions, and trades, not heretofore enumerated, of whatever name or character.” This quotation shows the pronounced difference beween, and the distinguishing features of, the two cases when thus contrasted. Where landlords were authorized by statute to dis-train for rent, “all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing on the estates demised,” this was held not to include trees, shrubs, and plants growing in a nursery garden. Clarke v. Gaskarth, 8 Taunt. 431. A statute exempted from taxation “every building erected for the use of a college, incorporated academy, or other seminary of learningand upon this it was ruled that inasmuch as all those enumerated were cor — 121 — porations, that therefore the general words, “or other seminary of learning” required that such institution should also be incorporated in order to have the benefit of the exemption. Chegaray v. Mayor, 13 N. Y. 220. In Illinois a railroad company was authorized by its charter “to purchase, hold, and use all such real estate and other property as may be necessary for the construction of its railway and stations, and other accommodations as may be necessary to accomplish the objects of its incorporation.” But the term “other accommodations,” was held not to include an elevator, though confessedly adding to the facilities for handling, storing, and shipping grain, and thereby enabling the railroad company to do a greater business; and among other reasons suggested by the court for this ruling it was said that “whatever is included in the expression, ‘other accommodations/ must be of the same class or kind as ‘railway and stations/ ” and then allusion is made to the well settled canon of construction, that a general description following a specific enumeration of objects or things, will be held to include only such as are of the same kind as those specifically enumerated. In re Swigert, 119 Ill. 83. A statute of the state of Pennsylvania made it a crime for any “warehouseman, wharfinger, or other person,” to issue any vouchers for goods, etc. And upon this statute it was ruled, that being a penal statute it must be construed strictly, and that the words, “other persons” following the particular words, “warehouseman” and “wharfinger” must be adjudged to refer to other persons ejusdem generis, viz.: those who are engaged in a like business, or who conduct the business of warehouseman or wharfinger with some other business or pursuit, and that no one unless brought within the plain terms of the act, could be held guilty thereunder. Bucher v. Com., 103 Pa. St. 528. — 122 — Governed by the principie under discussion, it was. ruled in Michigan that a statute which gave “every wife, child, parent, guardian, husband, or other person” a right of action against a liquor seller for injury done to the plaintiff by reason of the intoxication of any person, did not give the intoxicated person 'himself a right of action, and that he was not within the statute. Brooks v. Cook, 44 Mich. 617. An insurance case in England, decided so late as 1887, in the house of lords, affords forcible illustration of the doctrine in hand. A steamer was insured by a policy on the ship and her machinery, including the donkey engine. The policy covered perils of the sea, specially naming many, and then continued: “and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this imwrance, or any part thereof.” For the purposes of navigation the donkey engine was being used in pumping water into the main boilers, when, owing to a valve being closed which ought to-have been kept open, water was forced into and split open the air chamber of the donkey pump. The closing of the valve was either accidental or due to the negligence of an engineer, and was not due to ordinary wear and tear. It was held that the injury was not. covered by the policy, as it was not a peril of the sea; and although it was undoubtedly “a loss ór misfortune yet the specific words of the policy which preceded its. general language, it was said, restricted it to the same-genus as the specific words. In the course of his judgment the chancellor, Halsbuby, said: “If understood in their widest sense the words are wide enough to-include it [the injury]; but two rules of construction now fairly established as part of our law may be considered as limiting those words. One is that words, however general, may be limited with respect to the123 subject-matter in relation to which they are used. The other is that general words may be restricted to the same genus as the specific words that precede them.” Ins. Co. v. Hamilton, L. R. 12 App. Cas. 484, loc. cit. 490. To the like effect see Matter of Hermance, 71 N. Y. 481; People v. Railroad, 84 N. Y. 565; People v. Richards, 108 N. Y. 137, and Sutherland, Stat. Const., secs. 268, et seq.; State v. Stoller, 38 Iowa, loc. cit. 324, and cases cited; Bishop, Stat. Cr., secs. 245, et seq., and cases cited; State v. McCrum, 38 Minn. 154. Of course if we “take the wings of the morning and fly unto the uttermost parts of the earth” we may industriously ferret out some sporadic cases contrary to the well settled rule here announced, but I do not believe we should do this in entire disregard of our own decisions, and' of the overwhelmning weight of authority. And, in this connection, we should not be unmindful of the fact that criminal statutes are to be strictly construed. Says Bishop: “Such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered by them which are within both their spirit and their letter.” Stat. Crim. [2 Ed.], secs. 194, 218, 220, 227, 119, 193. Elsewhere the learned author observes: “As stated by Hawkins, the doctrine is: ‘No parallel case, which comes within the same mischief, shall be construed to be within the purview of it [the statute], unless it can be brought within the meaning of the words.’ In slightly different language, though a case of this sort is fully within the mischief to be remedied, and is even of the same class and within the same reason as other cases enumerated in the statute, con — 124 — struction will not be permitted to bring it within the statute unless it is also within the statutory words.” Ib., sec. 220. In Daggett v. State, 4 Conn. 60, Hosmer, C. J., when speaking of the strictness which should characterize the construction of such statutes, aptly remarks: “In extension of the letter of the law, nothing may be assumed by implication; ' nor may the mischief intended to be prevented or redressed, as against the offender, be regarded in its construction. It was the object of the principle to establish a certain rule, by conformity to which mankind should be safe, and the discretion of the judge limited. How much this must contribute to the security and enjoyment of the citizen, is too palpably obvious to require illustration. Upon the before mentioned principle, it has been adjudged, that an act made to punish the person who stole a cotv, is not applicable to him who steals a heifer; Richard CooTce’s case, Leach’s C. L. 109, and a law prohibiting the transportation of provisions in any wagon, or otherwise, to an enemy, is not infringed by driving fat oxen on the leg. The United States v. Sheldon, 2 Wheat. 119. That the mischiefs at which these laws were aimed, existed, in both the cases alluded to, is past a question; but the acts prosecuted not being within the words of the legislature,* were considered as not within the prohibitions of the laws. I will only add that the moment the strict construction of penal laws is abandoned, the difference between their interpretation, and that of remedial laws, must terminate, as there is no middle ground between them.” In United States v. Wiltberger, 5 Wheat. 76, Chief Justice Marshall said: “It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated — 125 — in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.” Guided by these considerations, I do not regard the term " chicken house building” as one recognized by the statute under discussion, and therefore regard the indictment fatally defective. 3. Section 3944, Revised Statutes, 1889, provides that: “Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted, and punished in the same manner, as a principal in the first degree.” Under this section it has been contended that the words “may be,” etc., mean “shall,” but we do not look at the point in that way. The point remains as it was at common law; the indictment may either allege the matter according to the fact or charge both the principal and the accessory as principals in the first degree. State v. Anderson, 89 Mo. loc. cit. 333. 4. As to the affidavit for a change of venue, it can not be noticed, since it could only have been preserved in a bill of exceptions, and there is none in this case. Because of the defect in the indictment the judgment should be reversed and the cause remanded. Btjbgess, J., concurs. Gantt, P. J., dissents. in bano. . Pee Cubiam. — The foregoing opinion handed down in division number two is adopted as the opinion — 126 — of the court in lane. Brace, O. J., and Burgess and Robinson, JJ., concurring with Sherwood, J., therein. Barclay, G-antt, and Mac’earlane, JJ., dissenting. The judgment of the circuit court will therefore be reversed and the cause remanded.