The opinion of the court was delivered by
Rowell, J.To rebut any presumption that the respondent was fleeing with stolen goods, and as a part of the res gestae to characterize his and Kelley’s trip, the respondent offered to show by Barnes, that when the latter left the others, to return with the team, the respondent and Kelley quarreled, and that Kelley found fault because he had paid the respondent for carrying him to the lake, and insisted that he should do it.
As the possession of stolen goods is a fact from which complicity in the larcény of them may be inferred, all the circumstances attending the possession and explanatory of it may be shown. But the fact that Kelley and the respondent quarreled would not have shed any light upon the character of the possession of the blanket, and so was properly excluded.
*424What Kelley said about his having paid the respondent to carry him to the lake was not competent, as it was mere narrative of a past transaction. And what he said by way of insisting that he should carry him is no better, as it was but another way of saying that he had agreed to do it.
This indictment is founded on s. 4141 of the statute, which makes it a State’s prison offense to steal clothing, cloth, yarn, or wool, exposed for drying or bleaching, or clothing, blankets, or robes, used or placed for use in travelling in a vessel, car, or vehicle, “ although the value of the property does not exceed seven dollars.” Section 4137 prescribes the same penalty for larceny generally, “ if the money or other property exceeds seven dollars in value.” By s. 4138,.stealing is petit larceny only, if the money or other property stolen does not exceed seven dollars in value.”
It is contended that s. 4141 does not embrace cases of stealing property of less than seven dollars in value, but only cases of property of that value or more; and that this statute, being penal and in derogation of the common law, should be most strictly construed, if necessary to that interpretation.
The rule that such statutes are to be strictly construed, has come to mean that they, like all other statutes, are to be fairly construed according to the legislative intention, courts refusing on the one hand to extend them to cases not clearly embraced within them, and on the other, to curtail their plain and obvious meaning by verbal nicety, forced construction, or equitable interpretation.
It is clear that the purpose of that section is, to make it felony to steal the property therein mentioned, in the circumstances mentioned, whatever its value.
The construction contended foi; would involve the absurdity of making that enactment hang upon a cent; for without it, if the property stolen exceeds the value of seven dollars by only a cent, precisely the same penalty is prescribed as by this section ; and if the minimum is seven dollars, then the sole purpose of this statute is to increase by a penny only the chances of *425■•sending a thief to State’s prison. This can by no means be the purpose ; but it is rather to punish more severely this kind of petty thieving, so annoying to the victim and so savoring of •depravity.
As the respondent was a witness in his own behalf, it was •competent to shake his credit by injuring his character. In this respect he stood like any other witness. But as he alone could .put his character in issue as bearing on the question of guilty or not guilty and did not do it, the evidence of bad character elicited ■on cross-examination could not be used to show guilt, but only to shake his credit; for conceding what is contended for, that itlie presumption of innocence is not of equal weight as evidence in respect of all men, but weighty or light according to the char-acter disclosed by the evidence, yet, the evidence must come in in a way to make it admissible against character as affecting that presumption, before it can be used for that purpose. And here lies the error of this charge ; for by it the jary were allowed to ■consider all the testimony “ in reference to this man,” in determining what weight they would give to the presumption of inno•cence, and thus, in effect, to consider the evidence of bad character as tending primarily to show guilt. This is but the ordinary case of evidence properly in the case for one purpose being improperly arsed for another purpose. Adams v. The People, 9 Hun. 89, is in point. See also Bish. Crim. Proc. s. 1185.
Exceptions sustained, verdict set aside, and case remanded for new trial.