I concur in the decree and with the majority opinion in sustaining bill of exception No. 3, which was taken to the action of the trial judge in overruling the motion for a new trial, but I do not subscribe to the ruling on bills of exception Nos. 1 and 2, the effect of which is to hold that the statute under which defendants are prosecuted covers a verbal as well as a written order. These bills of exception were well taken, and should have been sustained.
In my opinion, it is only the resistance to the service or execution of a written order which constitutes an offense under the statute.
The statute reads, in part:
"That whoever shall illegally resist, oppose or assault any officer of this state, while serving or attempting to serve or execute the process, writ ororder of any court, or shall assault *Page 380 and beat or wound any officer or other person duly authorized, while serving or executing any process,writ or order aforesaid," etc. (Writer's italics.)
It will be observed the statute specifies three things the resistance to the service or execution of which is made an offense, viz.: "The process, writ or order of any court."
Now, I do not think it will be seriously denied that every process and all writs emanating from a court of justice must be in writing.
"Process is so denominated, because it proceeds, or issues forth in order to bring the defendant into court to answer the charge preferred against him, and signifies the writ or judicial means by which he is brought to answer." Fitzpatrick v. City of New Orleans, 27 La. Ann. 457; 3 Bouvier, Law Dict. (Rawle's Ed.) 3392, verbo "Process."
See, also, 32 Cyc. pp. 410 to 422, inclusive.
"The word `process,' as now commonly understood, signifies those formal instruments called writs. * * *" Black, Law Dict. verbo "Process."
"A writ is process and process is a writ interchangeably." 21 R.C.L. p. 1261.
A writ, specifically, is:
"A precept in writing, couched in the form of a letter, running in the name of the king, president or state, issuing from a court of justice and sealed with its seal, addressed to the sheriff or other officer of the law, or directly to the persons whose action the court desires to command, either as the commencement of a suit or other proceeding, or as incidental to its progress, and requiring the performance of a specific act, or giving authority and commission to have it done; any order or precept in writing issued in the name of the state or of a court or judicial officer; synonymous with process. The term generally means process in a civil suit while that in a criminal case is usually denominated a `warrant.'" 40 Cyc. p. 2866 et seq. See Black, Law Dict. verbo "Writ."
As defined by Bouvier a writ is:
*Page 381"A mandatory precept issued by the authority of and in the name of the sovereign or state for the purpose of compelling the defendant to do something therein mentioned." 3 Bouvier's Law Dict. (Rawle's Ed.) 3496, verbo "Writ."
In the practice of the courts an order is "any direction of a court or judge made or entered in writing and not included in the judgment." 3 Bouvier, Law Dict. (Rawle's Ed.) 2423; Black, Law Dict; Anderson, Law Dict.; Burrill, Law Dict. (Writer's italics.)
While every writ and process issues from the court in the shape of an order or command, it cannot be disputed that every written order does not constitute either a writ or process, and it was for that reason, obviously, that the Legislature in enacting the statute under which defendants are prosecuted after specifying "process" and "writ" used the general term "order" to cover any precept, notice or other formal writing of the same kind, class or nature of the words previously used, but not expressly embraced by them.
"Where specific and general terms of the same nature are employed in a statute, whether the latter precede or follow the former, the general terms take their meaning from the specific, and are presumed to embrace only things or persons designated by them." State v. Fontenot, 112 La. 628, 36 So. 630.
This is an application of the familiar maxim of ejusdem generis, which is defined and explained as follows:
"When an author makes use, first, of terms, each evidently confined and limited to a particular class of a known species of things, and then, after such specific enumeration, subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet when thus used, embraces only things `ejusdem generis' — that is, of the same kind of species with those comprehended by the preceding limited and confined terms. Ex parte Leland, 10 S.C.L. 460; Pulom v. Jacob Dold Packing Co., 182 F. 356, 359." 19 C.J. 1255, footnote No. 16.
And in applying the maxim especially to the construction of criminal statutes it has been said:
"`As specified to penal statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law. It observes *Page 382 the respective rights of the different coordinate branches of the government, by requiring the Legislature to enact laws and the judiciary to enforce, but not create the laws — not even by construction.' Ex parte Neet, 157 Mo. 527, 535, 57 S.W. 1025, 80 Am. St. Rep. 638 (quoting Ex parte Lingenfelter, 64 Tex.Crim. R., 142 S.W. 555, Ann. Cas. 1914C, 765)." 19 C.J. 1256, footnote No. 16 (c).
I do not question the right of the court to issue certain so-called verbal orders. The illustrations given in the majority opinion of the judge ordering the sequestration of witnesses or commanding the sheriff to arrest parties engaged in disturbing the peace of his court, are familiar examples. But a failure to obey these orders would constitute nothing more than contempt of court. I do not believe that it was the intention of the lawmaker that such offenders should be amenable to the drastic penalty of two years at hard labor and a fine of $1,000; nor do I believe that the statute can be given so broad a construction as to cover such offenses.
The conduct of the defendants was outrageous and indefensible, and they should be punished to the full extent of the law covering their misdeeds, but I do not think their offenses can be brought within the provisions of Act No. 11 of 1882, amending and reenacting section 865 of the Revised Statutes.
"Nothing is a crime under our law which is not made so by statute. The court cannot by construction make that a crime which is not expressly made so by the Legislature." State v. Fontenot, 112 La. 642, 36 So. 635; State v. Comeaux, 131 La. 931, 60 So. 620.
For these reasons I am of the opinion that the trial judge should have charged the jury as requested, that the words "order of any court" contained in the statute meant a written and not a verbal order, and that he committed an error in delivering his general charge, when he informed the jury that the order of court referred to in the statute meant a verbal order as well as a written one. *Page 383