Turner v. State

BYKD, J.

I dissent from the conclusion arrived at by the court. I think that the verdict and judgment are correct, and, therefore, should be affirmed. I- hold, that the amendment to section 3178 of the Code is void and inoperative. So much of that section as considered necessary, and the amendment thereto, the latter being in italics, are as follows: “must, on conviction, be imprisoned in the penitentiary, not less than two, or more than five years, or by fine and imprisonment, one or both, at the discretion of the jury trying the same.” After the first “or” in the amendment, it is legitimate to imply the words “be imprisoned”; and, after diligent search, I find no authority for interpolating the word “punished” for imprisoned, as my brethren have done. In no definition to be found is the latter defined to be the synonym of the former; nor is the word “punish,” or any of its derivatives, used to define the word “imprison,” or any of its derivatives.

Mr. Bishop, in his eminent work on Criminal Law, (2 ed. § 67,) says: “But we can not import into an act words which the legislature did not put in it”; and see the authorities cited by him. Words may be transposed; a disjunctive conjunction has been construed as a conjunctive conjunction, and vice versa; and words which have been used in one place in a section of an act, may be understood as used where omitted; as in the case above mentioned in the section under consideration, the words “be imprisoned” may be understood after the word “or” in the amendment. But I have never found in any law-book any principle which would authorize a court to substitute words not used in the act.

*31Again, if the words “be imprisoned” are to be understood after the first word in the amendment, then, to my mind, the amendment is an absurdity and senseless, and therefore it should be held to be void. And even if the words “be punished” were understood, then the words “imprisonment,” and “one or both, at the discretion of the jury,” are so loose and uncertain in their meaning that the amendment should be held to be void. Who can say whether the word “imprisonment” means imprisonment in the penitentiary, provided in that section of the Code, or imprisonment in the jail of the county, as provided in section 3301 of the Code ? And who can tell whether the words “one or both, at the discretion of the jury,” give them a discretion only as to the fine and imprisonment prescribed in the amendment, if imprisonment there means in the county jail, or whether it gives the jury a discretion between the imprisonment prescribed in that section of the Code, and the “fine and imprisonment” prescribed in the amendment?

A statute may be drawn in terms so ambiguous, or confused, that the courts can not, with reasonable certainty, discern its meaning; and then they should pronounce it void for this cause.—The State v. Boon, 1 Taylor, 246; Chezem v. The State, 2 Carter, (Ind.) 149; ib. 523; 1 Bish. Cr. Law, § 55. In section 88 Mr. Bishop says, that the courts “can only use the material which these laws furnish them.”

Eor these reasons, I hold the amendment to be wholly inoperative. I express no opinion upon the proper construction of the amendment, as I do not reach that point in the course of my investigation.