UTE-EJUSDEM GENERIS "TOOL"-"IMPLE- in its probable resources for the year in ques- (2. BURGLARY 12-CONSTRUCTION OF STATtion the judgment against the city. The propriety of that judgment is being contested by appeal. It is therefore uncertain whether the board of education will recover anything from the city. Under the circumstances, therefore, the judgment cannot be regarded as an asset which should be taken into consideration. If the judgment be affirmed, then the board can take it into consideration in estimating its resources for the following year. [5] But the board of education insists that the levy of 37 cents, based on past experience, will not produce more than $55,835.62. It is argued that the levy should be sufficient to produce the sum requested during the fiscal year, in order that the board may meet its obligations; otherwise there would be an accumulation of indebtedness growing out of the failure of the levy of each year to produce the sum requested. In our opinion, taxes cannot be levied on the basis of their Under Ky. St. § 1159, providing that any person having or keeping in his possession any tools, implements, or other things used by burof using them burglariously shall be subject to glars for housebreaking, etc., with the intention imprisonment, etc., the application of the rule of ejusdem generis would not reasonably allow the words "or other things used by burglars for housebreaking" to include a bottle of nitroglycerin, which, though it may be used for housebreaking, is more commonly used for other and legitimate purposes, such as the construced as "tools" and "implements" refer to tangition of railroads, etc., since the things designatble, metallic, physical objects, or instruments available for and commonly used in burglary, so that an indictment following the statute charged no offense. [Ed. Note.-For other cases, see Burglary, Cent. Dig. § 28; Dec. Dig. 12. R. E. Lee Murphy, of Lexington, for appellant. M. M. Logan, Atty. Gen., and Chas. H. Morris, Asst. Atty. Gen., for the Common For other definitions, see Words and Phrases, First and Second Series, Implement; Tool.] Appeal from Circuit Court, Fayette County. James Black was convicted of having in not being collected. The law affords ample his possession a bottle of explosive substance and stringent means for their collection and, used by burglars for housebreaking and inthough they may not all be collected during tended for such use, his motion for a new the year for which they are levied, there is trial was denied, and he appeals. Reversed, no reason why such taxes should not finally and cause remanded, with direction to suscome into the treasury. Under such circum-tain the demurrer to the indictment and to stances, the board is authorized to borrow grant a new trial. money in anticipation of uncollected taxes that have been properly levied, and in this manner its obligations may be met. If any other method were resorted to, it would impose an unnecessary burden on the taxpayer who pays. He would have to pay a heavier tax solely because of the delinquency of others under an equal obligation to pay. In our opinion, the board of commissioners performs its whole duty when it levies upon the taxable property of the city a tax which, when collected, will produce the sum requested by the board. It is not required to levy a higher tax on the theory that some of the taxpayers will fail to pay during the year for which the tax is levied. It follows from the foregoing that the trial court did not err in refusing the relief prayed for. Judgment affirmed. BLACK v. COMMONWEALTH. wealth. SETTLE, J. The grand jury of Fayette county found and returned in the circuit court of that county against the appellant, James Black, the following indictment: "The grand jury of Fayette county, in the name and by the authority of the commonwealth of Kentucky, accuse James Black of the crime of having possession of burglar's tools committed as follows, viz.: That said James Black, on the 29th day of January, 1916, in the county aforesaid, and before the finding of this indictment, unlawfully and feloniously did have in his possession a bottle of explosive substance -the exact name of the same is unknown to the grand jurors-used by burglars for housebreaking, forcing doors, windows, locks, and buildings and other places where goods, wares, merchandise, and money are kept, said James Black then and there intending to use said explosive substance aforesaid burglariously, against the peace and dignity of the commonwealth of Ken (Court of Appeals of Kentucky. Sept. 29, tucky." 1. STATUTES 1916.) 194-CONSTRUCTION-EJUS DEM GENERIS. Under the doctrine ejusdem generis, the meaning of a word in the statute must be construed in connection with the words with which it is associated, so 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. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 272; Dec. Dig. 194.] He Appellant's trial under the above indictment resulted in a verdict and judgment finding him guilty and fixing his punishment at confinement in the penitentiary not less than two nor more than four years. He was refused a new trial; hence this appeal. urges as grounds for a reversal of the judgment of conviction: (1) Error of the trial court in overruling his demurrer to the indictment; (2) error of that court in refusing to grant the peremptory instruction directing his acquittal, asked by him at the con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes clusion of the commonwealth's evidence; (3) | sion of the burglary for which the latter that there was no evidence to support the was convicted. verdict. The facts established by the commonwealth's evidence were, in brief, as follows: Appellant, who is a resident of Ludlow, Ky., was arrested January 29, 1916, on Whitney street in Lexington, at the home of one J. W. Rice, who was shortly thereafter himself arrested for a burglary committed on the night of January 27th. Rice was tried for and convicted of this crime, but a day or two before appellant's trial. On January 29th two police officers went to Rice's home on the hunt for evidence to connect him with the burglary referred to, and there saw Rice's wife and appellant, and found in the house a bottle containing a substance they believed to be an explosive, which Mrs. Rice informed them belonged to her husband. They took charge of this bottle and, following appellant's arrest, found upon searching his person a bottle containing a very small, barely perceptible, quantity of a substance identical in appearance with that in the other bottle found at Rice's house. After committing appellant to jail the police officers, or one of them, delivered the two bottles to a Lexington chemist for analysis, who testified that he found the contents of both bottles to be a powerful explosive known as nitroglycerin. Neither the two bottles nor their contents were produced at appellant's trial, both, as testified by the chemist, having been destroyed by him because of his belief that their highly explosive character made it dangerous to keep or handle them. In addition to the above facts, it was shown by the commonwealth's evidence that appellant was a friend of Rice and an occasional visitor at his house. None of the evidence of the commonwealth connected appellant with the burglary committed by Rice, or conduced to prove that nitroglycerin was used by the latter in committing the burglary. Appellant did not testify himself, but introduced J. W. Rice as a witness in his behalf, who admitted that the bottle of nitroglycerin found by the police officers at his house had been left there by him, and that he had also left there another small bottle from which he had emptied nitroglycerin into the one found in his house, and supposed the entire contents of the small bottle had been poured into the other. The small bottle from which he had attempted to pour the contents was, as he stated, the one found upon the person of appellant, and had been furnished appellant by him for obtaining Sloan's liniment, to be used by appellant for rheumatism, with which he was so afflicted in his legs as to compel the previous use of crutches in walking. Rice further testified that appellant's arrest was effected while he had the small bottle in his possession, before he had an opportunity to obtain the Sloan's liniment, and that appellant was in no way connected with him in the commis The first question to be determined is whether the facts stated in the indictment constitute a public offense, and this question was properly raised by the appellant's demurrer to the indictment. Crim. Code, § 165, subsec. 4. The proper solution of this question depends upon the construction to be given the language of section 1159, Kentucky Statutes, upon which the indictment is based. That section provides: "Every person guilty of robbery or burglary shall be confined in the penitentiary not less than two nor more than ten years. If any pertools, implements, or other things used by burson shall have or keep in his possession any glars for housebreaking, forcing doors, windows, locks, or buildings, or other places where goods, wares, or merchandise or money is kept, with burglariously, shall be confined in the penitenthe intention of using said tools or implements tiary not less than two nor more than ten years." [1, 2] It will be observed that the indictment follows the language of the statute, but is the explosive found on the person of appellant a tool, implement, or other thing in the meaning of the statute the use of which for housebreaking, etc., is denounced by its terms? In constructing a statute the rule generally to be observed is that whatever is necessarily or plainly implied in a statute is as much a part of it as that which is expressed, but a statute should not be extended beyond the fair and reasonable meaning of its terms because of some supposed policy of the law, or because the Legislature did not use proper words to express its meaning. This rule of construction is especially applicable to statutes defining crimes and regulating their punishment. A further rule of construction is that the meaning of a word used in a statute must be construed in connection with the words with which it is associated, and out of this rule arises the doctrine of ejusdem generis, which is thus well stated in 36 Cyc. 1119: dem generis,' where general words follow the eral words must bear a different meaning from machine or contrivance used in betting, the specific words or be meaningless." said: whereby money or other things may be won Application here of the doctrine of ejus- or lost. On the trial of the case in the cirdem generis will not reasonably allow to the cuit court it was developed that the game words "or other things used by burglars for engaged in was commonly known as craps or housebreaking," etc., appearing in the stat- oontz, which is played with two ordinary ute, the meaning that they include nitro- dice on a table. The trial court, being of glycerin, which, though it may be used for the opinion that the facts developed by the the purposes denounced by the statute, is evidence did not constitute an offense within more commonly used for other and legitimate the meaning of the statute, on the defendpurposes, such as the removal of obstructions ant's motion peremptorily instructed the jury in the way of erecting building, constructing to acquit him. On appeal we held that the railroads, and making other public improve- statute did not embrace the offense of perments. It could with as much propriety be mitting the game of craps or oontz to be claimed that a flask of gunpowder or pack-played on the premises. In the opinion it is age of gun shells found upon one's person would constitute the offense defined by the statute, as the powder or shells might be used in housebreaking, and for that reason would, by implication, come within the meaning of the words "or other things used by burglars for housebreaking," contained in the statute. The strained construction of the words mentioned contended for by counsel for the commonwealth cannot, in fairness or reason, be accepted. Things designated as "tools" and "implements," as in the statute, and the possession of which with a burglarious intent is therein denounced, are such tangible, metallic, or other physical objects or instruments as would be available for use, and are commonly used, in committing burglary. Consequently the words "or other things used by burglars for housebreaking," etc., must be held to embrace and mean only objects or things of the same general nature or class as those designated; i. e., of like kind or character. The mere fact that a substance such as powder, or a liquid explosive such as nitroglycerin, may be used in housebreaking cannot entitle them to be placed in a class with such things as are designated in the statute as "tools" and "implements." To illustrate our meaning, section 1242, Kentucky Statutes, among other things, declares that: * "The averments of the indictment, and the evidence offered in support of it, present the question: When a game of oontz is played with dice on a table or other surface by betters, does it come within the meaning of the terms 'other machine or contrivance' used in the statute? machine or contrivance? This court, recogniz In other words, what constitutes such other ing as it does the evil of gambling, and the legis lative desire to suppress it, is far from being disposed to cramp the force of this statute. It must be remembered, however, that the punishment denounced by it is severe. The offender is made a felon. One should not be thus branded unless the law clearly makes him so. If it takes statute, it should not be done. If the Legislaa doubtful construction to bring him within the ture really intended it to embrace such a party, it can, by additional legislation, make it plain. We turn then to precedent and rules for the ute first enumerates a keno bank and a faro construction of statutes for guidance. The statbank, contrivances which are used notoriously and solely for gaming. It then adds, or other machine or contrivance used in betting.' It is a rule of construction that where a statute or any instrument enumerates certain things, and then uses a term which may be construed to include other things, it is generally to be confined to those of a like class or character. The term is to be restricted to those ejusdem generis. The general words following the particu lar ones must be construed as applying to things Here the statute of the same general class. first names certain machines or contrivances in well-known use for gaming. Keno and faro are banking games. Keno banks and faro banks are contrivances for gaming in every sense of the word; so recognized and generally understood. This is not true of dice, which, while they may, and often are, used for gaming, as, indeed, almost anything can be, usually serve for amusement. Nor can it be said that the table or floor, or whatever surface may be used, constitute the machine or contrivance within the meaning of the statute. Such things are not ordinarily used for gaming. Our law provides for the seizure and destruction of gaming implements, and this statute could not well be applied to the surfaces upon which this game might be played. As well might it be claimed that if persons gamed by the throwing of coppers upon an ordinary table or floor, the money or table fell within the terms 'other machine or contrivance' used in the statute, and that the Er-party suffering it to be done was liable to this severe penalty. The 'machine or contrivance' referred to in the statute must, under the rule ejusdem generis, be one similar in character to a faro or keno bank." State v. Gilmore, 98 Mo. 206, 11 S. W. 620; Chappell v. State, 27 Tex. App. 310, 11 S. W. 411; Kansas v. Hardin, 1 Kan. 474; Ritte v. Commonwealth, 18 B. Mon. 35; Commonwealth v. Monarch, 6 Bush, 298. "If any person shall, in a sudden affray, or in sudden heat and passion, without previous malice, and not in self-defense, 申 cut, thrust or stab any other person with a knife, dirk, sword or other deadly weapon, without killing such person, he shall be fined not less than fifty nor more than five hundred dollars, or confined in the jail not less than six months nor more than one year, or both, in the discretion of a jury." In construing this section we held that the words "or other deadly weapon" therein used does not include a wooden club with which a wound was inflicted by striking, although such club was a deadly weapon. win v. Commonwealth, 96 Ky. 422, 29 S. W. 340. In Commonwealth v. Kammerer, 13 S. W. 108, 11 Ky. Law Rep. 777, the defendant was indicted under a statute which made it a felony for any one to set up, carry on, or conduct a keno bank, faro bank, or other # * In Kennedy v. Foster's Ex'r, 14 Bush, 479, the question involved was whether the right of the payee to recover of a surety on a note was barred by the statute of limitations of seven years pleaded by the latter, in estoppel of which the payee pleaded that he had been obstructed in the bringing of the suit on the note within the seven years, by the surety's request for delay and his promise to pay the note without suit. The statute of limitations relied on by the surety provided that the limitation should not apply to "any delay assented to by the surety in writing," and it was the contention of the payee that the period of forbearance procured by the surety should be deducted in computing the period of limitation. This, however, was not allowed by the court, because the delay was not assented to by the surety in writing. It was insisted for the payee that the surety's assent in writing to the delay was not essential, as the statute also declares that: "If such surety shall abscond, conceal himself or by removal from the state or otherwise, obstruct or hinder his being sued, the time of such obstruction shall not be computed as part of the time of limitation" --and that though the surety did not consent in writing to the delay, he did otherwise, that is, by his request for indulgence and promise to pay the debt, obstruct or hinder his being sued within the seven years. In the opinion it is said: ""The words "defeat or obstruct," as used in the act, signify the performance of some act on the part of the sureties which will amount to a prevention or hindrance of a suit in opposition to the will and the rights of the creditor, such as cannot, with reasonable diligence, be overcome. The terms import resistance and obstruction to his rights; and, unless the acts complained of are, in point of fact, such as would hinder and prevent him from bringing the suit, notwithstanding his desire to do so, they cannot properly be said to "defeat or obstruct" such suit.' This is in accordance with a well-settled rule of construction. When certain things are enumerated, and then a phrase or word is used which includes other things, but does not specify what other things were intended, such phrase or word will generally be confined to things of the same kind as those enumerated. 5 Term Reports, 375, 379; 1 Barn. & C. 237; 5 Barn. & C. 640; 3 Randolph, 191. The acts specially designated as sufficient to deprive the surety of the right to compute the time of their continuance as part of the period of limitation are all of them such as obstruct or hinder the institution of the suit, although the creditor may desire to sue, and hence the phrase or otherwise obstruct or hinder' must be construed to refer to obstructions or hindrances of a kind similar in character, or having a similar effect as those specified. A request to forbear, or a promise to pay the debt at a future time, cannot, in any just sense, be said to either obstruct or hinder the bringing of an action. The failure to sue in such a case is the voluntary act of the creditor. He is left free to act as he may prefer, may sue if he will, and cannot, by any fair or reasonable interpretation, be said to be either obstructed or hin*Any other construction leaves open a broad field for litigation and perjury, which the provision, that indulgence assented dered. of limitation shows the Legislature appreciated and intended to close." Assuming that our construction of section 1159, Kentucky Statutes, correctly expresses its meaning, the conclusion is inevitable that the indictment against appellant fails to state a public offense; hence his demurrer thereto should have been sustained, and the error committed by the trial court in overruling it compels the reversal of the judgment. It is unnecessary to consider the objection of appellant that the evidence fails to establish his guilt, or his complaint of the failure of the trial court to peremptorily instruct the jury to acquit him, further than to say the evidence was scant; but, even if it were stronger in support of the facts alleged in the indictment than we find it to be, as the facts therein alleged do not manifest a public offense, necessarily the evidence cannot be said to do so. Therefore the giving on the peremptory instruction would have been proper. For the reasons indicated the judgment is reversed and cause remanded, with directions to the circuit court to grant appellant a new trial, sustain his demurrer to the indictment, and for such further proceedings as may conform to the opinion. REED v. COMMONWEALTH. (Court of Appeals of Kentucky, Sept. 28, 1916.) 1. INTOXICATING LIQUORS 111 — OFFENSES -STATUTE. Special acts passed before the adoption of the present Constitution, prohibiting the sale of liquors in certain counties, are yet in force. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 121; Dec. Dig. 111.] 2. CRIMINAL LAW 304(9)-EVIDENCE-JUDICIAL NOTICE-SPECIAL PROHIBITION LAW. in M. county, where the sale of intoxicating liqIn a prosecution for unlawful sale of liquors at the time of such sale, it was only necessary uors has been prohibited by special laws in force and not necessary to allege or prove that the sale for the commonwealth to show a sale as charged, of liquor was prohibited in that county, since, under Ky. St. § 1624, the court would take judicial notice that an act of the General Assembly of 1889-90 (Acts 1889-90, c. 1662) prohibiting the sale of intoxicating liquors in that county was still in force. to in writing should be excluded from the period ing him with the offense of unlawfully sell For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing spirituous and vinous liquors in Morgan | vise the jury that the sale of liquor was procounty, Ky., "where the sale of intoxicating hibited in Morgan county. The only essential liquors has been prohibited by special pro- thing for the commonwealth to show by the hibition laws and the said laws were in full evidence was the sale as charged in the inforce and effect at the time of the said sale dictment, and this it did. in the said county," the appellant was convicted. On the trial of the case the evidence for the commonwealth showed that one L. T. Minix, in August, 1914, purchased from the appellant, in Morgan county, three gallons of Wherefore the judgment is affirmed. HUDDLESTON v. COMMONWEALTH. whisky, for which he paid him the purchase (Court of Appeals of Kentucky. Sept. 28, 1916.) 1. INTOXICATING LIQUORS 146(1)—SALE— [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 163; Dec. Dig. 146(1).] price. On this evidence the trial court instructed the jury that, if they believed from In a prosecution for selling intoxicating liqthe evidence beyond a reasonable doubt that uor in a county where the local option law was in Morgan county, within 12 months before in force, a trick, such as leaving money on the top of a table to pay for liquor, would not be the finding of the indictment, Reed sold liq-permitted to evade the law. uor to Minix in quantities of less than five gallons, they should find him guilty and fix his punishment at a fine of not more than $100 and by imprisonment in the county jail for not more than 40 nor less than 10 days. Under the evidence and instructions the jury found the appellant guilty, fixing his punishment at a fine of $100 and imprisonment in the county jail for 40 days, and he appeals. The ground urged for reversel is that the commonwealth failed to show by any evidence that there was at the time of the sale any special law in force in Morgan county prohibiting therein the sale of liquor, and, this being so, the court should have directed the jury to find the appellant not guilty. There was no evidence that there was any law in force in Morgan county at the time of the sale prohibiting the sale of liquor therein, and if it was essential to a conviction that evidence of this nature should have been introduced, the motion for a peremptory instruction to acquit the appellant should have been sustained. [1] It is provided in section 1624 of the Kentucky Statutes that "the several courts of this commonwealth shall take judicial notice of all acts and resolutions of the General Assembly"; and it has been held in Crigler v. Com., 120 Ky. 512, 87 S. W. 276, 27 Ky. Law Rep. 918, Ball v. Com., 99 S. W. 326, 30 Ky. Law Rep. 600, Combs v. Com., 104 S. W. 270, 31 Ky. Law Rep. 822, and many other cases, that, in prosecutions for violation of the liquor law in counties in which the sale of liquor has been prohibited by special acts passed before the adoption of the present Constitution, these special acts are yet in force, and that it is not necessary in such prosecutions to prove the existence of the act. The courts under the section of the statutes quoted will take judicial notice of its existence. 2. INTOXICATING LIQUORS 236(3) SALE In such prosecution that the witness for the state stated that, in his judgment, the place where he obtained the whisky from the defendant was in the local option territory, as charged, without anything more, would justify a conviction. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 304; Dec. Dig. ~236(3).] Appeal from Circuit Court, Clinton County. intoxicating liquors in a county where the peals. Affirmed. E. Bertram, of Albany, for appellant. M. M. Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth. THOMAS, J. The appellant, Allen Huddleston, was indicted for and convicted of selling intoxicating liquors in Clinton county, where the local option law was in force. Upon the trial he was fined $60 and 20 days in jail, and from the judgment rendered upon the finding of the jury, he prosecutes this appeal. The testimony of the prosecuting witness, A. B. Russell, to whom the sale is alleged. to have been made, is, in substance, that he went to the residence of the appellant, who procured a small beer bottle and filled it from a jug containing about two gallons of whisky, and that the witness laid a quarter on the top of a table in the room where the whisky was obtained, that he went there for the purpose of buying the whisky, and that he left the quarter on the table to pay for it. Continuing, the witness says: is in Kentucky or in Tennessee; it is right at "I do not know whether the room we were in the line. I never saw the line run. I have al[2] By an act passed at the session of the ways thought it was in Kentucky. My best General Assembly held in 1889-90 (Acts 1889-judgment is that it is in Clinton county, Ky.. 90, c. 1662) the sale of intoxicating liquors in Morgan county was prohibited, and this act is yet in force in that county. It was not necessary that the indictment should charge, or the evidence show, or the instructions ad through the house, and that the room we were but some people claim that the state line runs in is in Tennessee, but I do not know and can not state which state it is in." It was admitted that the local option law was in force in Clinton county. The defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |