State v. Eckhardt , 232 Mo. 49 ( 1910 )

BURGESS, J.

Defendant and one Clara Shabulak were jointly indicted, charged with exposing, with intent wholly to abandon, a child under the age of six years, which child had been confided to them by a person or persons unknown. Defendant was thereafter duly arraigned, entered her plea of not guilty, and-, upon her motion, a severance was granted. The trial resulted in a verdict of guilty, her punishment being assessed at two years in the penitentiary. Her motions for new trial and in arrest of judgment having been overruled, defendant appealed from the judgment of conviction.

No bill of exceptions was filed in this case, and the only error assigned relates to the sufficiency of the indictment. The indictment is bottomed on section 1856, Revised Statutes 1899' (sec. 4490, R. S. 1909), which is as follows: “If any father or mother of any child under the age of six years, or any other person to whom such child shall have been confided, shall expose such child in a street, field or other place, with intent wholly to abandon it, he or she shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months.”

The charge in the indictment is “that Ida Eckhardt and Clara Shabulak, on the 13th day of August, A. D. nineteen hundred and eight, at said county of St. Louis, and State of Missouri, did then and there unlawfully and feloniously expose a certain child under the age of six years, to-wit, of the age of fourteen days, in a certain street railway shelter or station, with intent to unlawfully and feloniously wholly abandon said child, said child having been confided to them, the said Ida Eekhardt and Clara Shabulak, by person or persons unknown, contrary to the form of the statute,” etc.

Defendant contends that the place of exposure and abandonment “must be a street or field, or like place, where the exposure is as great or greater than if in a field or street, and not in a place of shelter as charged in the indictment. ’ ’ By this contention we understand the defendant to invoke the doctrine of ejusdem generis, a familiar rule of construction, that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. “The rule is based on the obvious reason that if the Legislature had intended the general words, to be used in their unrestricted sense they'would have made no mention of the particular classes. The words ‘other’ or ‘any other,’ following an enumeration of particular classes are therefore to be read as ‘other such like,’ and to include only others of like kind or character. The doctrine of ejusdem generis, however, is only a rule of construction, to be applied as an aid to ascertaming the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. Nor does the doctrine apply where the specific words of a statute signify subjects greatly different from one another; nor where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless.” [36 Cyc. 1119-1122.] This definition fairly and clearly explains the meaning, purpose, manner of applying and limitations of the doctrine invoked.

It is very clear to us that the principle of ejusdem generis cannot be applied here, nor yet the doctrine of noscitur a sociis, for the words ‘ ‘ street” and ‘‘ field, ’ ’ appearing in the statute, are not even remotely related, and neither derives any color from association with the other, but each stands as the representative of a distinct class. The meaning, then, of the general expression “or other place,” in the statute is not restricted or affected by the preceding particular words, which “signify subjects greatly different from one another.”

Endlich on the Interpretation of Statutes, section 409, says: “Further, the general principle in question applies only where the specific words are all of the same nature. Where they are of different genera, the meaning of the general word remains unaffected by its connection with them. Thus, where an act made it penal to convey to a prisoner, in order to facilitate his escape, ‘ any mask, dress, or disguise, or any letter, or any other article or thing,’ it was- held that the last general terms were to be understood in their primary and wide meaning, and as including any article or thing whatsoever which could in any manner facilitate the escape of a prisoner, such as a crowbar. [Reg. v. Payne, L. R. 1 C. C. 27.] ”

The great fundamental rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. For the purpose of discovering the legislative intent it is proper, and often necessary, to consider the history of the statute, the reason for its enactment, and the prior state of the law on the subject to which the statute relates. [Gabriel v. Mullen, 111 Mo. 119; Greeley v. Railroad, 123 Mo. 157; Missouri Light Co. v. Scheurich, 174 Mo. 235; State v. Balch, 178 Mo. 392.]

Our statute first appears in the Revised Statutes of 1835, p. 172, and except for a minor change in the punishment, has remained unchanged since its adoption. The section is substantially a copy of a provision in the Revised Statutes of New York; 1829 (vol. 2, p. 665, sec. 35), the only difference being that the New York statute contains the words, “expose such child in any highway, street, field, house or outhouse,” while the words in our statute are ‘ ‘ street, field or other place.” There is no doubt in our mind that the object of our lawmakers in making such change was to broaden the scope of the statute, and render it an offense for any such person as therein designated to expose a child in a street or field, or any other place, no matter where, with intent wholly to abandon it. This view is strengthened by the fact that the New York Legislature, probably moved by the same considerations as ours, repealed the old and enacted a new law in 1881 (New York Laws of 1881, chap. 676, sec. 287), which reads as follows: “A parent or other person having the care or custody, for nurture or education, of a child under the age of fourteen years, who deserts the child in any place, with intent wholly to abandon it, is punishable by imprisonment for not more than seven years.”

If the statute were construed as suggested by defendant’s counsel, it would lead to the most absurd and dangerous consequences. Suppose the places of exposure named therein were increased in number so as to include, we shall say, a house, outhouse, yard, garden, orchard, etc. What then? A child might be exposed and deserted in a tent, and be exposed to as much danger there as in any of the other places named. A maxim of law which well applies here is, that “as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated. ’ ’

With reference to the word “expose,” as used in the statute, there is no difficulty as to its meaning. A very respectable authority, Webster’s New International Dictionary, gives one definition of this word as: ‘ ‘ To turn or cast out; to place and leave in a probably fatal position; to abandon; as, to expose an infant.” That this is the sense in which the word is employed in the statute there can be no doubt. In view of this definition, which we accept as the proper one here, a child could be exposed in a “street railway shelter or station” as much as in a street or field.

Shannon v. People, 5 Mich. 71, was a prosecution under a statute similar to ours. Construing the statute, the court said: “At common law, the exposure of a child, with intent to abandon, was no offense, unless injury to the child actually ensued; and then the crime was measured by the event. In other words, the common law punished only the injury, not the. exposure to, or hazard of, the injury. [Reg. v. Hogan, 5 Eng. L. and Eq. 553; Reg. v. Renshaw, 20 Ib. 593 ; Ib. 591; 1 Bishop, Cr. Law, sec. 413.] But it was often difficult to determine whether ..the injury in a given case was the result of the exposure, or of some other cause; besides, this remedy, after the mischief was done, came too late. The object of the statute obviously was to meet the exposure to injury in limine;, to prevent the hazard of injury, and to punish as a crime the act creating the hazard. ’ ’

We find nothing wrong with the indictment in this case. It is sufficient under the statute, and the record being free from error the judgment is affirmed.

PER CURIAM. — This opinion was prepared by Burgess, J., prior to Ms death, and as it expresses onr views we hereby adopt the same a.s onr opinion and the opinion of the conrt.

All the judges concur.