(Dissenting). — I am of the opinion that the facts set forth in the information and briefly stated in the opinion 'of the majority of the court clearly constitute a criminal offense within the spirit of section 692 of the Penal Code of 1913, as denounced by the clause of said statute reading as follows:
“Every person who, by means of any machine, instrument or contrivance . . . willfully and fraudulently reads, or attempts to read, a.ny message, or [attempts] to learn the contents thereof, while the same is being sent over any . . . telephone line ... is punishable as provided in section 690.”
The mere fact that the machine, instrument, or contrivance used, the dictograph and its attachments, was so used as to intercept the message whilst being sent between the point of its origin, the sender’s vocal chords and the sound receiver, and before the contents of the message actually passed on to the telephone line, but was in the act of so passing through the air from the vocal chords of the sender to the apparatus for receiving and transmitting the same when intercepted, was, for that reason, no less in spirit a tapping of the telephone line than would the act of attaching physically a tapping wire to the telephone line at any point between the transmitter end *508and delivering end of the telephone line. The gist of the offense denounced is the willful and fraudulent reading, or attempt to read or to learn, the contents of the message being sent whilst so being sent, by means of the use of any kind of machine, instrument, or contrivance to accomplish that purpose.
The evident purpose of the statute is to protect the persons using the wire for their business affairs from intermeddlers, and thereby preserve secrecy if they desire. The public interest demands that private persons using public service conveniences in their business affairs have the right to preserve secrecy. If the public service company through its servants, agents, or employees who have an opportunity to learn the contents of messages disclose the same, that is another matter, but if intermeddlers unconnected with the telephone company intercept private messages wrongfully, the public interests suffer.
Whatever construction other courts have placed upon statutes of other states, like or unlike our said statute, whereby such other statutes have been held as only meaning the physical tapping of wires, I do not agree to such decisions as correct interpretation when applied to our statute supra. The strict literal, technical construction only will permit of holding that the facts charged constitute no offense under the said statute. True, the statute does not say in words that the offense includes the reading or learning of the contents of a message by means of a machine, instrument, or contrivance that will intercept the message at the instant the same starts toward the telephone wire, yet the message is as certainly being sent over a telephone wire from the time the words constituting the message are separately spoken by the sender as when the message is being sent after the words have reached the transmitter device of the telephone. For these reasons, I cannot agree with the order affirming the judgment. On the other hand, I am of the opinion the broader construction of the statute is the clear legislative intention, and the judgment should be reversed and the cause remanded.