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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 cir. cumstances 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.
$ 239. Secondly. In favor of defendants, criminal statutes, like remedial, will be expanded in their meanings. Already
Illustrated. — 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 re
6 quire 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 3 Walls v. S., 7 Blackf. 572. P. v. Safford, 5 Denio, 112; Wood v. 4 And see 1 East, P. C. 248; Duchess Smith, 23 Vt. 706; Anderson v. Com., of Kingston's Case, 1 Leach, 146. 9 Bush, 569. And see, as illustrative, Ante. § 196. Brown v. Maryland, 12 Wheat. 419; 6 Ante, SS 132, 231; Reg. v. Allday, 8 Bode v. S., 7 Gill, 326; Hall v. S., 4 Car. & P. 136; Smith v. Kinne, 19 Vt. Harring. (Del.) 132; post, SS 1019, 564. 1020.
7 Ante, SS 232, 233. 2 Macon v. S., 4 Humph. 421.
8 Com. v. Slack, 19 Pick, 304
cases of felony." Thereupon it was held that, for a case to be within the former clause, the breaking must be such as amounts to a felony. “So that,” observes East, “the general words of it ought to be supplied with an intendment; namely, where the party is convicted of breaking the house in the night burglariously, or in the day, and stealing goods therein.” So,–
Heavier punishment for second offense.- Whenever a statute makes a second offense felony, the first being misdemeanor, or punishes the second more heavily than the first, it is enlarged by construction to mean, after conviction for the first, not merely after it is committed.
12 East, P. C. 625, 631.
P. v. Butler, 3 Cow. 347. And see Dwar. Stat. (2d ed.) 643. 255
SOME MISCELLANEOUS DOCTRINES OF STATUTORY INTEPRETA.
243. Grammatical construction.
244. Provisions in the alternative.
256a. Concluding suggestions and views
$ 241. What for this chapter and how divided. While the foregoing chapters have brought to view most of the rules of statutory interpretation, a few, of a miscellaneous character, were found not to be distinctly within the scope of any of them. Therefore they were left unexplained, or explained only in part. We shall, in this chapter, consider them under the following heads: I. Giving the technical meanings to technical words; II. Grammatical construction; III. Provisions in the alternative; IV. General words following particular; V. Meanings overlying one another; VI. The express mention of one thing implying the exclusion of another; VII. How statutory and common-law remedies mingle; VIII. Mandatory and directory statutes; IX. Concluding suggestions and views.
I. GIVING THE TECHNICAL MEANINGS TO TECHNICAL WORDS.
8 242. In general.— That, prima facie, interpretation is to give to those words of a statute which are technical to its subject their technical meanings we have already seen.' And this is because the legislature may reasonably be presumed to have so intended. The most frequent application of this doctrine is to
Terms of fixed legal meanings.? — As the result of constant adjudication, very many words and phrases commonly em1 Ante, SS 96-100.
2 Ante, & 96 et seq.
ployed in statutes, contracts and pleadings have acquired fixed legal meanings, unlike or more limited or extended than their popular ones. Then, as all laws are to be construed together, when a statute employs a word or phrase of this sort, it is, in the absence of any express indication to the contrary, to be interpreted in the sense which the law has thus ascertained.? For example,
“Infamous crime"-(Threatening letters — Solicitations to sodomy). --It having been made punishable in England to send to any person, with an intent mentioned, any letter threatening to accuse him of (among other things) “any infamous crime,”. the judges were of opinion that a charge of making overtures to commit sodomy was not within this act; that they were bound to take the word “infamous' in its legal sense;" and that such overtures, however they would disgrace and expose to detestation, would not subject the person making them to an infamous punishment, or prevent his being a witness.”5. So —
“ Charged with crime”—“Accused of crime”—are severally phrases the meaning of which in the law is familiar. They imply certain legal steps. Therefore a former statute in Alabama, against the concealment or carrying a way of any slave “charged with a capital crime,” could, as construed by the courts, be violated only after legal proceedings were commenced against the slave. And, in a similar South Carolina statute, the words “accused of crime” were held to mean when complaint is made to a magistrate for the purpose of having a warrant issued.? But
“Fleeing from justice"-(Limitations).- A "fleeing from justice,” within the proviso of a limitations statute, may take place before prosecution begun.8
1 Ante, SS 86 et seq., 113b et seq. 3 Stat. 4 Geo. 4, ch. 54, $ 3.
? U. S. v. Magill, 1 Wash. C. C. 463; * Crim. Law, I, SS 972, 974. Adams v. Turrentine, 8 Ire. 147; U. S. 5 Rex v. Hickman, 1 Moody, 34. Sub
. v. Wilson, Bald. 78, 95; Reg. v. Ellis, stantially the same meaning is given Car. & M. 564; Kitchen v. Tyson, 3 to the words “infamous crime” in Murph. 314; Macy v. Raymond, 9 the constitution of Pennsylvania. Pick. 285; Bennac v. P., 4 Barb. 164; Com. v. Shaver, 3 Watts & S. 338. Eason v. S., 6 Eng. 481; Spencer v. S., 6 S. v. Duncan, 9 Port. 260. And see 20 Ala. 24; U. S. v. Smith, 5 Wheat. Willington v. Stearns, 1 Pick. 497. 153; U. 8. v. Pirates, 5 Wheat. 184; 7S. v. South, 5 Rich. 489. S. v. Mace, 5 Md. 337; Ex parte Vin- 8 U. S. v. Smith, 4 Day, 121. cent, 26 Ala 145, (62 Am. D. 714.]
“On complaint.”— A statute authorizing a criminal prosecution to be instituted “on complaint,” means a complaint as technically understood, usually under oath. And —
“Manslaughter”-in a statute has its common-law meaning. So
‘Negligent escape”— signifies the same in a statute as at the common law.:
Meaning by statutory use.— Statutory use, equally with use at the common law, may have imparted to a word a particular import, so that in a subsequent act it will have the same meaning *
242a. Technical not meant.- Where, from the connec tion, subject, or otherwise, it is plain that the technical meaning was not intended by the legislature, the court, we have already seen, will not impute it. To illustrate,
"Dwelling-house.”— The word “dwelling-house,” the meaning of which is fully explained further on, includes, in the law of burglary and generally in the law, a structure for business uses whereof any internally connected room is occupied for sleeping and abode.? But if, in a statute exempting property from the claims of creditors, it was given this wide meaning, one might protect against them any amount of real estate by living in some inferior room thereof, to the utter subversion alike of justice and the legislative will. Therefore, in such a statute, the word will not extend to parts of a building devoted to business purposes. Again,
“Outlaw."— The word "outlaw,” in a statute, will not have its common-law meanings in a state where outlawry is un
1 Campbell v. Thompson, 16 Me. * S. v. Nates, 3 Hill (S. C.), 200. 117. But the requirements of the 5 Ante, & 100. complaint, under the statutes of our 6 Post, SS 277–290. beveral states, and at the common ? Post, SS 280, 282; Samanni v. Com., law, differ. Crim. Pro., I, SS 152, 16 Grat. 542; S. v. Mordecai, 68 N. C. 230-232.
207; S. v. Outlaw, 72 N. C. 598; S. v. 2 S. v. Fleming, 2 Strob. 464. And Potts, 75 N. C. 129. see U. S. v. Magill, 1 Wash, C. C. 463; 8 In re Lammer, 7 Bis. 269, 14 Bankr. S. v. Taylor, 2 McCord, 483.
Reg. 460. 3 Adams v. Turrentine, 8 Ire. 147. 9 Crim. Law, I, S 967; Crim. Pro., For “rob," "jeopardy," "dangerous I, 8 673; ante, & 132. “One who is weapons," see U. S. v. Wilson, Bald. put out of the protection or aid of 78; for "party," see Merchants' Bank the law." Bouv. Law Dict. And v. Cook, 4 Pick. 405, 411.
see Drew v. Drew, 37 Me. 389; Walker