(dissenting). The defendant, who was sixteen years of age, has been convicted of the misdemeanor (see Vehicle and Traffic Law, § 70, subd. 1) of violating section 20 (subd. 1, *39par. b) of the Vehicle and Traffic Law. The arresting officer’s record shows that the night was clear, the defendant courteous, that there had been no accident and that no other crime or offense was charged.
The statute involved is a penal statute since it imposes punishment for a wrong against the State (see McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 273, and cases cited therein), and it has long been the rule in this State that penal statutes are to be strictly construed against the prosecutor and in favor of the accused (id. § 271, and cases cited therein). Section 21 of the Penal Law, expressly providing to the contrary, does not apply here since, by its terms, section 21 relates only to the provisions of the Penal Law as such. (Indeed, notwithstanding such direction in § 21 we have held that the Penal Law itself is to be strictly construed [see, e.g., People v. Nelson, 153 N. Y. 90].) Purely statutory wrongs cannot be established by implication, and “ acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559; People v. Shifrin, 301 N. Y. 445, 447; People v. Wallace & Co., 282 N. Y. 417; People v. Adamkiewicz, 298 N. Y. 176; Winters v. New York, 333 U. S. 507, 515-516.) Accordingly, unless the defendant’s act is a violation of the strict letter of the Vehicle and Traffic Law, he may not be declared a misdemeanant and be stigmatized as a criminal with all of the lifetime consequences thereof. The fact of the conviction cannot be erased even by a Governor’s pardon, for a pardon does not obliterate the record or blot out the fact that defendant has been convicted (see People v. Carlesi, 154 App. Div. 481, affd. 208 N. Y. 547, affd. 233 U. S. 51).
The majority of this court has concluded that the words “ going to and from school ” are unambiguous and that they must receive a narrow construction, that is, a definition which excludes extracurricular, afterhour social and athletic events, even though the activity be one in which the student’s school is participating and one at which his presence has been solicited by the school.
*40The majority agrees that the word “ school ” has a number of different shades of meaning but concludes that when “ school ” is used in a phrase like “ going to and from school ” it means but one thing, a regular school session. With that conclusion we cannot agree. As used in the context of the Vehicle and Traffic Law, the word ‘ ‘ school ” is a noun. As a noun ‘‘ school ’ ’ has numerous meanings (see, e.g., 38 Words and Phrases [Perm, ed.], School; Webster’s New International Dictionary [2d ed.]) and is by no means restricted to a regular school session. Had the Legislature intended to prohibit a junior operator from driving during hours of darkness except when going to and from “ regular school sessions ” it could have said so without difficulty. Instead, it selected the term “ school ” without any qualifications, a term which various courts have characterized as a generic term — a word of broad signification (see 38 Words and Phrases [Perm, ed.], School). It is not proper for this court to give that word a narrow definition so as to bring defendant within the proscription of the statute and have Mm declared a misdemeanant when his acts were otherwise innocent and lawful and the Legislature has not clearly and positively declared them to be criminal.
Extracurricular and athletic activities are sponsored by schools because the authorities deem them to be an essential and integral part of a young man’s schooling. The authorities are aware that education is a broad term embracing mental, moral and physical powers and faculties alike, and that suitable and guided recreation for the youth of their community is necessary if juvenile crime is to be stemmed. The word “ school ” in a broad, or even in the ordinary sense, embraces such activities. As we have said, where the violation of a statute carries with it the stigma of conviction of a crime, the statute must be strictly construed against the State, or, conversely stated, must be liberally construed in favor of the defendant. To say that the term “ school ” means only “ a regular session of school ” is to construe this statute strictly against the defendant for such a conclusion can be reached only by ignoring the numerous broader meanings which the word “ school ” admittedly has.
“ The extent to which a holder of a junior operator’s license may operate a motor veMele * * * shall be printed on each • • * [junior operator’s] license * * (Vehicle and *41Traffic Law, § 20, subd. 1, par. b.) Prior to defendant’s conviction, junior operators’ licenses carried the bare warning that the licensee was prohibited from operating a motor vehicle during the hours of darkness except to go to and from school. After defendant’s conviction the Commissioner of Motor Vehicles saw fit to have the warning on these licenses specifically state that extracurricular activities were not included in the term “ school ”. We think this indicates a recognition on the part of the Commissioner that, as we have concluded, it would not be unreasonable for a student between the ages of sixteen and eighteen to read the noun ‘ ‘ school ’ ’ to mean what defendant here contends it means, viz., that it includes attending and returning from a basketball game at school. If that be so this conviction may not stand.
We do not believe that, in the circumstances of this case, the construction of the statute by the Trial Justice is such a one as, according to the fair import of the terms of the statute, promotes the ends of justice.
The judgment of conviction should be reversed and the information dismissed.
Lewis, Ch. J., Dye, Fuld and Van Voorhis, JJ., concur with Desmond, J.; Conway, J., dissents in an opinion in which Froessel, J., concurs.
Judgment affirmed.