From dwelling-house. The statute of 12 Anne, stat. 1, ch. 7, against stealing goods "being in any dwelling-house, etc., although such house, etc., be not actually broken in by such offender, and although the owner of such goods or any other person or persons be or be not in such house," is not violated where one steals, in his own house, the goods of another;1 or where a wife does the same in her husband's house; or where the larceny is of property found upon the person, though in a dwelling-house, but therefore not under its protection; or where the things stolen are such as are not ordinarily deemed to be under the protection of the dwelling-house. For like reasons, 2 § 234. "Enter" and steal — (Consent to entry).— An Alabama statute having made punishable any person who should "enter any dwelling-house" and commit larceny therein, one who, before entertaining the criminal intent, entered by the owner's permission, was held not to have committed the offense." But under the differently-worded Georgia enactment the contrary was adjudged, because, said the court, "larceny from the house is defined to be either the breaking or entering any house with an intent to steal; or, after breaking and entering said house, stealing therefrom any money or thing of value." Perhaps some may dissent from this on the ground that, in favor of the accused, or even where a strict interpretation is required, 643; Rex v. Seas, 1 Leach, 304, 2 East, P. C. 643. 1 Rex v. Thompson, 1 Leach, 338; S. C., Rex v. Macdaniel, 2 East, P. C. 644. But a lodger who invites a man into his room, and there steals his goods, is within the statute. Seven judges against three, in Rex v. Taylor, Russ. & Ry. 418. See, further, § 234. 2 Rex v. Gould, 2 East, P. C. 644, 1 Leach, 339, note; Com. v. Hartnett, 3 Gray, 450. 3 Rex v. Campbell, 2 Leach, 564, 2 East, P. C. 644; Rex v. Watson, 2 East, P. C. 680, 681; Rex v. Owen, 2 East, P. C. 645, 2 Leach, 572. And see S. v. Chambers, 6 Ala. 855. A man went to bed with a prostitute, first putting his watch in his hat on the table. She stole it while he was asleep; and 42 East, P. C. 644, 680, 681. And 5 S. v. Chambers, 6 Ala. 855. breaking and entering," in the second clause, should be taken in an evil sense, such being the ordinary effect of the expression in the law. In dwelling-house, by later English statute.— In England, the before-mentioned statute of Anne was superseded by 7 and 8 Geo. 4, ch. 29, § 12, the words of which are simply, "shall steal in any dwelling-house any chattel, money or valuable security to the value in the whole of £5 or more." And it was held that one may commit the offense in his own house by there stealing another's goods. This interpretation does not overrule the earlier, the statutory expressions being different; yet it may create some doubt whether the present English judges would interpret the old words, were they modern, as the former judges did. Still, 235. Just and beneficial. Whatever may be said of any particular application of the doctrine, the doctrine itself, properly applied, is highly just and beneficial. Criminal punishment should be kept within the conscience of mankind, and be withheld where it refuses assent. In the nature of things, statutes cannot be so framed as, by express exemption, to provide for every possible, unforeseen and even foreseen case thereafter to arise, which, while within the terms of their main provisions, is still outside of their spirit and purpose. And what cannot be done the courts should understand as not having been attempted. Therefore, though a case in judgment is within the letter of a statute, if they can see that it is exceptional to its spirit and purpose, and so the law-makers did not mean punishment for it, they ought not to inflict the punishment. By excepting it in the interpretation they fulfill their highest duty, which is to carry out the true legislative intent. And Mischiefs avoided.—The mischiefs resulting from a contrary course are endless. To punish one who has not violated the spirit of the law, however contrary to the letter his act may have been, is to strike a blow at the root of our jurisprudence, as well as to wrong the individual. Especially in this country, where emphatically the law emanates from the people, not 1 Reg. v. Bowden, 2 Moody, 285. And see Com. v. Hartnett, 3 Gray, 450. 2 Crim, Law, I, §§ 210, 211. always the whole people, many acts depending on bare majorities, there is no way in which a legislative enactment, good or bad, can be brought so effectually into disrepute, or be made the instrument of so much real injustice, as to construe it in disregard of the principle we are considering. When a statute comes into being under a divided public sentiment, the judges necessarily form their private opinions; and, if adverse, they are liable in fact, whatever may be their real purpose, to construe it so rigidly by the letter as to punish some whom its framers never meant to punish; and suffer to escape others whom, if they had followed more its spirit, they would have seen to be within the letter. Clearly the legislature alone is to determine its own policy; and if what it does is within its powers, the judges have no right to interfere: they are, on the other hand, to concur judicially in the propriety of its enactments, and construe them as it, had it foreseen the case, would have dictated. At the same time, § 236. Words the guide. primary guide to the intent. the courts we saw in another Beyond mischief which prompted. If the court knows the mischief which prompted an enactment, its construction is not necessarily to be so narrow. For, in the words of Shaw, C. J., "it is not unusual in legislation, where a particular apprehended wrong or grievance is the immediate occasion for the passing of an act, to extend it to other wrongs of the like kind, and make a general, instead of a special, provision." Therefore, The legislative words are the What else can be looked at by connection. And, Kidnaping. In the case before the tribunal, an act, the motive for which was probably to prevent negroes from being kidnaped and reduced to slavery in other states, was held applicable to the seizure and carrying away of white men for a different purpose." § 237. Limits of doctrine.—The doctrine under consideration should not be carried beyond where its reason—namely, the following of the legislative intent, as apparent in the entire 1 And see ante, § 70 and note. 2 Ante, § 146. Ante, $$ 74-77. 4 Com. v. Blodgett, 12 Met. 56, 79. But see Rex v. Williams, 1 Leach, 529. Com. v. Blodgett, supra. And see. for a further statement of this case, ante, § 205. words, illumined by such surroundings as the judicial mind may look into1-will lend it support. Thus, Permit “in writing.”— Where a statute requires, to render the doing of a thing lawful, a permit "in writing," no consent not written will suffice. Within this doctrine, Consent of parents to marriage.— An officiating clergyman violates a statute forbidding the joining of minors in marriage "unless the parent be present and consent to the marriage, or give a certificate in writing under his hand,” if, without such presence, he proceeds on a mere verbal expression of approbation from the parent. So, Selling to minors.- Under a statute forbidding the selling of intoxicating drinks to minors without the parental consent, mere proof of the father's willingness that the son should drink the sort of beverage sold will not excuse the seller." Again, Lord's day. A general prohibition against doing worldly business on the Lord's day extends to persons who conscientiously observe the seventh day of the week as the Christian Sabbath. Moreover, 6 § 238. Doubtful cases and judicial differences.- In this class of cases as in others, there will be those lying near the line separating the one result from the other, and those on which judicial opinions differ. Of the latter sort, Selling liquor for medical use.— Under statutes forbidding in general terms the unlicensed sale of intoxicating liquors, some courts hold that no necessity of a purchaser, and no prescription. of a physician, even in a case where there is no person in the county authorized to sell the liquor, and it is an essential medicine, will protect the vendor.8 Other courts, it is believed the majority, execute these laws in the spirit which prompted their 1 Ante, §§ 70-77. ? And see, besides the other cases cited to this section, Rex v. Ledbitter, 1 Moody, 76; S. v. Findley, 1 Brev. 107. S. v. Hart, 4 Ire. 246; S. v. Stroud, 1 Brev. 551; 1 Bishop, Mar., Div. & S., $$ 803, 804. As to what words in a permit are sufficient, see Hurt v. S., 19 Ala. 19. See ante, § 232 and note; 1 Bishop, 5 Adler v. S., 55 Ala. 16. 6 Specht v. Com., 8 Pa. St. 312, [49 Am. D. 518.] 7 See, besides the other cases cited to this section, S. v. Griffin, 3 Har ring. (Del.) 560; S. v. Isaacs, 1 Speers, 223. 8 Com. v. Sloan, 4 Cush. 52; Com. v. 4 Wyckoff v. Boggs, 2 Halst. 138. Kimball, 24 Pick. 366. enactment; holding, for example, that a druggist is justified, upon a proper occasion, bona fide, and with due caution, in retailing liquor to be used merely as a medicine.' Near the border line are such cases as Practicing medicine.— A statute against permitting slaves "to go about the country under the pretext of practicing medicine, or healing the sick," was interpreted to embrace all circumstances of medical practice, even those in which the slave is competent, and undertakes it with his master's encouragement from motives of humanity. So, Concealed weapons.- A prohibition of carrying weapons concealed about the person has been adjudged broken by so carrying a pistol for the purpose of merely exhibiting it as a curiosity.3 5 § 239. Secondly. In favor of defendants, criminal statutes, like remedial, will be expanded in their meanings. AlreadyIllustrated. This doctrine has been variously illustrated in foregoing discussions; as, for example, in the interpretations given by the English judges to the statutes against the exercise of trades by unqualified persons. It is further illustrated in those cases wherein acts general in terms are construed to require the concurrence of a wrongful intent with the thing done; and in most of the cases cited to the point that a statute will not be suffered to extend beyond the mischief contemplated by it, the court in fact inserting, by construction, a clause in favor of the accused. Again,— § 240. House-breaking. The English interpretations of 1 Edw. 6 (ch. 12, § 10) illustrate the doctrine. It took clergy from persons convicted of the "breaking of any house by day or by night," any one being therein put in fear, and also from the perpetrators of certain other enumerated crimes, which were felonies; adding, that clergy shall be allowed "in all other 1 Donnell v. S., 2 Ind. 658. See also P. v. Safford, 5 Denio, 112; Wood v. Smith, 23 Vt. 706; Anderson v. Com., 9 Bush, 569. And see, as illustrative, Brown v. Maryland, 12 Wheat. 419; Bode v. S., 7 Gill, 326; Hall v. S., 4 Harring. (Del) 132; post, §§ 1019, 1020. 2 Macon v. S., 4 Humph. 421. 3 Walls v. S., 7 Blackf. 572. 4 And see 1 East, P. C. 248; Duchess of Kingston's Case, 1 Leach, 146. Ante. § 196. 6 Ante, §§ 132, 231; Reg. v. Allday, 8 Car. & P. 136; Smith v. Kinne, 19 Vt. 564. 7 Ante, §§ 232, 233. 8 Com. v. Slack, 19 Pick. 304. 1 |