With

TEMPORANEOUS CONSTRUCTION.

General Assembly to prescribe the penalty for | 5. STATUTES (§ 220*)-CONSTRUCTION
the violation of a criminal statute.
this discretion, when exercised within con-
stitutional bounds, the courts cannot inter-
fere.

The judgment of the district court is reversed, and the cause remanded for a new trial.

Reversed and remanded.

STEELE, C. J., and CAMPBELL, J., con

cur.

(44 Colo. 600)

GIBSON V. PEOPLE.

(Supreme Court of Colorado. Jan. 4, 1909.) 1. STATUTES (§ 181*)-CONSTRUCTION-LEGISLATIVE INTENT.

The court in construing a statute must ascertain and effectuate the legislative will. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 259; Dec. Dig. § 181.*] 2. TIME (§ 4*)-YEARS-AGE OF INFANT "DELINQUENT CHILD' "SIXTEEN YEARS OF AGE OR UNDER.

The contributory delinquent law (Sess. Laws 1903, p. 198, c. 94) prescribes a punishment for persons who contribute to the delinquency of a child, as defined by law. The delinquent children law (Sess. Laws 1903, p. 178, c. 85) provides that the words "delinquent child" shall include any child "16 years of age or under" who violates any law. Held, that the words "16 years of age or under" excludes children who have passed beyond their sixteenth birthday, for a child is 16 years of age on the sixteenth anniversary of his birth, and thereafter is over 16 years of age, and hence one cannot be convicted of contributing to the delinquency of a child who has passed his sixteenth birthday.

[Ed. Note.-For other cases, see Time, Dec. Dig. § 4.*

For other definitions, see Words and Phrases, vol. 2, p. 1956.]

3. STATUTES (§ 194*)-CONSTRUCTION-GENERAL AND SPECIFIC LANGUAGE.

The rule that, where words of general import follow specific designations, the application of the general language is controlled by the specific, is but a rule of construction, and is not allowed to defeat the plain legislative will.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 272; Dec. Dig. § 194.*] 4. INFANTS (§ 13*)-CUSTODY AND PROTECTION -OFFENSES STATUTES "ANY OTHER PERSON."

The words "any other person" in the contributory delinquent law (Sess. Laws 1903, p. 198, c. 94), providing that the parent or parents, legal guardian or person having the custody of a delinquent child or "any other person" responsible for the delinquency of a child shall be guilty of a misdemeanor, etc., mean such persons as occupy towards the delinquent child a relation similar to that of parent, legal guardian, or person having the custody of such child, and one not a parent or guardian or the custodian of a delinquent child is not within the expression "any other person," unless he occupies towards the child a relation similar to that sustained by those enumerated.

[Ed. Note.-For other cases, see Infants, Dec. Dig. § 13.*]

CON

While due consideration must be given to the legislative construction of a statute, it is not conclusive on a court of last resort.

[Ed. Note. For other cases, see Statutes, Cent. Dig. 298; Dec. Dig. § 220.*]

6. COURTS (§ 89*)-PREVIOUS DECISIONS AS PRECEDENTS-LOWER COURTS.

The decisions of inferior courts on the construction of a statute, while entitled to due consideration, are not binding on the court of last resort.

[Ed. Note.-For other cases, see Courts, Dec. Dig. $ 89.*]

Error to El Paso County Court; Robert Kerr, Judge.

Laura Gibson was convicted of violating the contributory delinquent law, and she brings error. Reversed and remanded.

S. H. Kinsley and W. D. Lombard, for
N. C. Miller, Atty. Gen.,
plaintiff in error.
W. R. Ramsey, Asst. Atty. Gen., William H.
Dickson, Atty. Gen., George D. Talbot, Asst.
Atty. Gen., C. C. Hamlin, Dist. Atty., and
Henry Trowbridge, Deputy Dist. Atty., for
the People.

CAMPBELL, J. The General Assembly at
its fourteenth regular session passed two
acts-one entitled "An act concerning delin-
quent children" (Sess. Laws 1903, p. 178, c.
85), the other "An act to provide for the
punishment of persons responsible for or con-
tributing to the delinquency of children"
(Laws 1903, p. 198, c. 94). The purpose of
the former act, designated in the record "the
delinquent children law," as declared in sec-
tion 12 thereof, is to furnish, through agen-
cies of the state, for delinquent children that
care, custody, and discipline which shall
approximate, as nearly as may be, that which
should be given by their parents. To carry
out such purpose, jurisdiction is conferred
upon the county courts, and an elaborate
procedure is furnished for its exercise. The
other act, referred to as "the contributory
delinquent law," prescribes a punishment to
be visited upon designated persons who are
responsible for, or contribute to, the delin-
quency of a delinquent child or a juvenile
delinquent person, as defined by "the delin-
quent children law." It was under the con-
tributory delinquent law that defendant was
informed against, tried, convicted, and sen-
tenced by the county court of El Paso coun-
ty to imprisonment in the county jail, and
to review that sentence defendant sued out
this writ.

We are advised in the Attorney General's brief that this species of legislation originated in Colorado; the act now before us being the first of the kind ever passed by any legislative body. It met at once with the approval of those actively engaged in bettering the condition of children, was cordially welcomed by bench, bar, pulpit, and press as a long step in advance in treating the indiscre

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

tions of youth, has been literally or substan-, are subject to the punishment prescribed by tially adopted by several of the states of the "contributory delinquent law"?

These in their order:

the Union, made applicable by Congress to the District of Columbia, and has been, and 1. As the contributory delinquent law is, receiving favorable consideration by the prescribes a punishment for persons who congovernments of the leading nations of Eu- tribute to the delinquency of a delinquent rope and Asia whose earnest attention it child or a juvenile delinquent person, as, has attracted. Speaking generally, its avow-defined by the juvenile law, we must look to ed purpose is praiseworthy, and an intelli- the last-mentioned law to learn who are degent and wise exercise of the powers it confers is calculated to develop the good qualities of children to the benefit of organized society. In view of the foregoing, this being the first time the law is before the highest court in the jurisdiction of its origin, we are admonished not to cripple the act or give to its substantive provisions a meaning that will seriously impair its efficiency or unnecessarily embarrass those immediately charged with its enforcement, unless forced to do so by the application of sound rules of legal construction. In the spirit invoked, which always should be, and generally is, observed by the courts, viz., to ascertain and effectuate the legislative will, we enter upon the discussion of some of the important propositions which the necessities of the pending cause require.

linquent children. Section 1 of the delinquent children law says that the act shall apply only to children "sixteen (16) years of age or under." "The words 'delinquent child' shall include any child sixteen (16) years of age or under such age who violates any law," etc. Any child “sixteen (16) years of age or under such age" may, therefore, become a delinquent child or a juvenile delinquent person. The Attorney General contends that these italicized words include children during their entire sixteenth year and up to the seventeenth anniversary of their birth, while defendant maintains that it excludes children who have passed beyond the first day of their sixteenth year. The controverted point as to whether a person arrives at a certain age on the last minute of the day next preceding the given anniversary of his A number of questions are ably discussed birth, or on the first minute of such anniverby respective counsel in their briefs and ex- sary, or at some other given moment, is not haustively by defendant's counsel in oral involved here, and we are not to be underargument. Some of them grow out of the stood as deciding it. We make this observafacts of this case, and are not of general tion, for defendant's counsel concedes that importance. Some relate to the scope and during the whole of the sixteenth anniversary meaning of important substantive provisions day of his birth defendant would be subject of the law. As we are compelled to reverse to the law. Counsel have not found in any the judgment for two substantial reasons, other statute or Constitution or in any juwhich will prevent another trial of this acdicial decision wherein it has been construed tion and necessitate a discharge of the de- the exact language employed in the statute fendant, we shall not pass upon the other now under consideration, and we have not propositions raised and argued by counsel, made the discovery. Many quotations from whether they are peculiar to the present our statutory law whereby our General Ascase or affect the law itself. The informa-sembly has fixed the age limit are printed in tion, omitting formal parts, charges that defendant was responsible for, encouraged, caused, and contributed to the delinquency of a boy, who then was a delinquent child and juvenile delinquent person as defined by statute. In connection with other facts not material to this opinion, the proofs disclosed that the boy had theretofore been adjudged by the county I court a delinquent child as defined by statute, and whatever, if anything, defendant did towards contributing to his delinquency was after his delinquency was judicially determined under the delinquent children law. At this time the boy was 16 years and 5 months old. Defendant did not then have custody of him, and she was not his parent or legal guardian and did not sustain towards him any similar relation. To these facts must the pertinent provisions of our statute be applied. The result of such application gives rise to the two legal propositions upon which our decision is based: (1) What is the limit of the age of children who come within the purview of the "delinquent

the briefs, but outside of the statute now before us the exact definitive or restrictive words are not employed. It is obvious that the General Assembly intended to fix some limit to the age of children affected by the statute-a point of time beyond which they no longer are amenable to its provisions. In one sense a child is 16 years of age until it is 17; so also it is 16 when it is 18; but, in the true sense, it is 16 and over whenever it has passed beyond the first day of the sixteenth anniversary of its birth. Had it been the intention to include children up to the time they reach their seventeenth birthday, the General Assembly would naturally have said “children under seventeen years of age.” But, when only those "sixteen (16) years of age or under" were mentioned, it obviously meant what it said, namely, children "sixteen (16) years of age or under," not "sixteen years of age and over." If a statute prescribing the age limit read, "over the age of fourteen years," one 14 years and 6 months old would not come within its provisions if

statute.

because he would be only 14 years of age, | we note that, after this trial below, the sixand not over 14, until he reached the fifteenth teenth General Assembly (Sess. Laws 1907, anniversary of his birth. And yet we appre- p. 338, c. 155; Rev. St. 1908, § 598, p. 309) hend no such construction would be put upon amended the section of the act of 1903 in a statute so reading. A child is 16 years of which these words occur, and in the amended age on the sixteenth anniversary of his birth, section the persons enumerated in the originand thereafter is over 16 years of age. The al section are omitted and it now reads, alleged delinquent juvenile, being 16 years "Where any person shall be responsible for," and 4 months old at the time defendant is etc. The bill for the amendatory act was said to have contributed to his delinquency, introduced in the General Assembly by a was "sixteen years and over," not "sixteen member of the house of representatives, who years or under"; hence was not a juvenile was a deputy of the district attorney who delinquent person within the meaning of the filed this information and who was conversant with the point here made, and evidently was proposed by him, and passed by the General Assembly, to avoid thereafter the construction to which the courts would be driven so long as the formerly included, now omitted, words remained in the act. To make entirely clear the legislative intention thereafter to bring within the provision of the act all persons who contribute to the delinquency of the delinquent juvenile regardless of the natural or legal relation which they sustain towards him, the General Assembly used the general language quoted. Due consideration is to be given both to legislative construction and that of inferior courts. Neither is conclusive upon a court of last resort. The legislative construction in this instance har

2. The contributory delinquent law declares that the "parent or parents, legal guardian, or person having the custody of such child, or any other person," who contributes to the delinquency of a delinquent juvenile person, "shall be guilty of a misdemeanor." Defendant was not a parent or guardian, or the custodian of the juvenile delinquent, but the Attorney General says she comes within the expression "or any other person." The familiar general rule, which is enforced in this jurisdiction, is that, where words of general import follow specific designations, the application of the general language is controlled by the specific. This is but a rule of construction, and is not allowed to defeat the

plain legislative will; yet, where the legis-monizes with our own and is given effect.

We close the discussion with the observa

lative intent is doubtful, resort to rules of construction is proper. Applying this rule to this statute, and bearing in mind that its tion that, as will readily appear from the foregoing, the Attorney General is unduly apprime purpose is to provide for delinquent children, as nearly as may be, the care and prehensive of the supposed disastrous effect training which their parents should give but upon this scheme of legislation as the result which they do not afford, and to that end of the construction here put upon two of its provisions. In the points decided the constisubstituting governmental authority for par- tutionality of the act is not involved, and the ental control, it would seem entirely clear that by "or any other person" the General integrity of the legislative scheme is not materially affected. The General Assembly, Assembly meant other like persons; that is, foreseeing this construction as to the class of such other persons as occupy towards the delinquent a relation similar to that of par-der the contributory delinquent law, wisely persons liable to the prescribed penalty unent, legal guardian, or custodian, and upon and seasonably, by the amendment referred whom rests the obligation of training either arising from natural ties or created by law. to, has already made plain and effective its The persons specified by no means exhaust intention concerning them, and at its apthe whole genus, but it is apparent that there wise make a change as to the age of children proaching session may, if it sees fit, likeare other persons who may occupy towards to which it wishes the delinquent children the delinquent a relation similar to that suslaw to apply. tained by those enumerated. For example, older brothers and sisters, other blood rela-manded to the county court, with instructions The judgment is reversed and cause retives, teachers, nurses, and companions, none of whom are enumerated, but are of the same genus. A number of cases are collected in 26 Am. & Eng. Enc. of Law (2d Ed.) p. 609 et seq. A case quite in point is Morse v. Morrison, 16 Colo. App. 449, 66 Pac. 169. See, also, Bouvier's Law Dictionary, title “Ejusdem Generis."

The Attorney General says that some of the county courts intrusted with the enforcement of this statute have given to "or any other person" a broader meaning as including all other classes and conditions of persons. This court must put its own construction upon these words. In this connection

to discharge the defendant.
Reversed and remanded.

STEELE, C. J., and GABBERT, J., concur.

(44 Colo. 608)

WILSON v. PEOPLE.
(Supreme Court of Colorado. Jan. 4, 1909.)
Error to El Paso County Court; Robert
Kerr, Judge.

Anna Wilson was convicted of crime, and she brings error. Reversed and remanded.

W. D. Lombard and S. H. Kinsley, for plaintiff in error.

unmarried woman. The demurrer was overruled, and appellant assigns error. The contention of appellant is that the indictment in failing to charge that the woman was married failed to charge an offense under the

CAMPBELL, J. By consent of counsel this cause was consolidated for hearing in this court with another pending cause entitled Gibson v. People, 99 Pac. 333. Precisely the same questions of law and fact are present in the two cases. The decision there is controlling here. In accordance therewith, the judgment of the county court is reversed, and the cause remand-first clause of the statute for the reason ed, with instructions to the county court to discharge the defendant.

Reversed and remanded.

that adultery at common law consisted of unlawful sexual intercourse with a married woman. We are aware that by the older

STEELE, C. J., and GABBERT, J., concur. writers and adjudged cases such has been de

114 N. M. 522)

UNITED STATES v. MEYERS. (Supreme Court of New Mexico. Sept. 2, 1908.

Rehearing Denied Jan. 12, 1909.)

1. ADULTERY (§ 1*)-ELEMENTS-MARRIAGE.

In an indictment for adultery under the federal statute (Act March 3, 1887, c. 397, § 3, 24 Stat. 635 [U. S. Comp. St. 1901, p. 3636]) against a married man, it is not essential to allege that the woman with whom the offense is charged to have been committed was either a married or an unmarried woman.

[Ed. Note. For other cases, see Adultery, Cent. Dig. §§ 2, 3; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 1, pp. 212–214.]

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1591⁄2, 160; Dec. Dig. § 58.*] McFie, J., dissenting.

(Syllabus by the Court.)

clared the law. But the better view and the greater weight of authority seems to be that adultery consists in the voluntary sexual intercourse of a married person with one not the husband or wife. Bish. Stat. Cr. (3d Ed.) § 654a, 656; 1 Cyc. 952. Congress, in the second clause of the section above quoted. has enlarged this definition so as to include

an unmarried man when his offense is with a married woman, and in the last clause has seen fit to exclude the unmarried woman when her offense is with a married man. This last clause adds nothing to consequence of such an act on the part of the married man. It is therefore apparent that the indictment sufficiently charges the offense, and the demurrer was properly overruled.

2. The wife of appellant was called, sworn as a witness, and, over his objection, testified to the fact of marriage and certain incriminating facts. This raises an important question. In 1889 the Legislature passed section

3432, Comp. Laws 1897, which is as follows: "Hereafter the husband or wife of any defendant in any trial of a prosecution for crime before any court or officer authorized to hear or try said prosecution, shall be a

Appeal from First Judicial District Court; competent witness to testify in favor of, but before Justice Ira A. Abbott.

John Meyers, alias John Maus, was con

not against, such defendant: Provided, that such husband or wife shall be a competent witness to testify against any such defendant

victed of crime, and appeals. Reversed and where the prosecution is for any unlawful

remanded.

assault or violence forcibly committed by the

Hickey & Moore, for appellant. D. J. Lea- defendant on the person of such witness." hy, U. S. Atty.

Laws 1889, p. 13, c. 10, § 1. This remained the law until 1897, when the Legislature passed the following act:

PARKER, J. The defendant was convicted of the crime of adultery under the federal "Section 1. Hereafter in the courts of this statute, commonly called the "Edmunds-Tuck- territory no person offered as a witness shall er Act," which is in terms as follows: "That be disqualified to give evidence on account of whoever commits adultery shall be punished any disqualification known to the common by imprisonment in the penitentiary not ex-law, but all such disqualifications may be ceeding three years; and when the act is shown for the purpose of affecting the credcommitted between a married woman and aibility of any such witness and for no other man who is unmarried, both parties to such purpose: Provided, however," etc. act shall be deemed guilty of adultery; when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery." Act March 3, 1887, c. 397, § 3, 24 Stat. 635 (U. S. Comp. St. 1901, p. 3636).

"Sec. 2. This act shall take effect from and after its passage and all laws and parts of laws in conflict herewith are hereby repealed."

See Laws 1897, pp. 45, 46, c. 22, compiled as section 3016, Comp. Laws 1897.

This act was re-enacted in 1901 (Laws 1901. 1. A demurrer was interposed to the in- p. 108, c. 58) with a different proviso, not dictment on the ground that it failed to al-relevant to this discussion, and was re-enactlege whether Rose Weil, the woman with ed in 1907 in the same form as originally whom the offense is alleged to have been com- passed in 1897. mitted, was either a married woman or an

It is claimed that the act of 1897 worked

a repeal of the act of 1889 by necessary im- | 3, 1887, c. 397, 24 Stat. 635 (U. S. Comp. St. plication, and we agree with the contention 1901, p. 3635), Congress set aside the comin so far as the two acts are in conflict. While the first act is specific and limited in its scope and object, and would ordinarily not be repealed by implication by a subsequent general statute covering the same subject, still in this case the subsequent act uses negative terms and assumes to provide an exclusive rule for all cases. Therefore the earlier act will be held to be repealed to the extent of any direct conflict between the two.

Other errors are assigned, but we do not count of any disqualification known to the deem it necessary to examine them.