(dissenting). — That the principle of ejusdem generis is frequently .applied in the construction of statutes both civil and criminal I readily concede, and it is as often held that penal laws must be strictly construed in favor of the accused and against the state. But after all that has been said these canons of construction have but one purpose and that is to enable the courts to ascertain the legislative intent. If the object and intention is plain there is nothing to construe.
In Ileydon’s case, 3 Coke’s Reports, 8, it was resolved by all the batons of the exchequer “that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st. What was the common law before the making of the act? 2nd. What was the' mischief and defect for which the common law did not provide? 3rd. What remedy the parliament hath resolved and appointed to cure the disease of the common wealth? And, 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress .subtile inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro lono pullico.”
The courts of this country have uniformly agreed that they have no right to extend a criminal statute to *127cases out of its letter, but the question often arises, as in the case at bar, when the words are broad enough, does the case in hand fall 'within the mischief of the statute. One róason assigned for investing the judges with the office of construing statutes is “that the lawmakers can not possibly set down all eases in express terms.”
A general word following one or more less general terms ejusdem generis takes its meaning from them and ordinarily is presumed to be restricted to the same genus as those words. The reports abound in illustrations of the application of this rule of construction; as, where a statute authorized distress for rent of “corn, grass, or other product” growing on the leased premises, only products similar to corn and grass could be ■distrained, and not young trees which were also products of the land but of distinct character. Clarke v. Gaskarth, 8 Taunt. 431.
And in an act making it penal for any “warehouseman, wharfinger, or other person, to issue any voucher for goods, wares, etc., unless he shall have actually received them in store or to ship or transfer such goods, etc., without the return of the receipt, the phrase ‘other person,’ is to be construed ejusdem generis with warehouseman and wharfinger and .does not include one who received grain on storage with the' option of becoming its purchaser and without compensation if he shall not exercise that option and who gave a receipt not intended to be negotiable.”
Another rule of construction often resorted to and growing out of the association of words in an act of the legislature is that “the inferior does not include the superior.” Thus where duties were imposed under the general head of “metals,” upon copper, brass, pewter, and tin and on all other metals not enumerated, it was held to include only metals inferior to those named and *128not to fall on gold or silver which are known as precious metals. Casher v. Holmes, 2 B. & Ad. 592.
But along with these rules of construction which have descended to us from the sages of the law has come at all times the admonition that the plain intention of the law must not be sacrificed by any rule of construction. As said by the supreme court of the United States “when the words are general and include various classes of persons there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all. The words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.”
In Regina v. Payne, L. R. 1 Cr. Cas. Res. 26, the prison act, 1865, which forbade the 'conveyance into’ any prison, with intent to facilitate the escape of. a prisoner, of any mash, dress, or other disguise, or of any letter, or any other article or thing, it was unanimously ruled by the court through C. B. Pollock that a crowbar was included under the words “or any other article or thing,” though the rule of ejusclem generis was pressed by counsel in argument.
In Woodworth v. State, 26 Ohio St. 196, it was held that “a supervisor of roads” was an officer within the meaning of a statute which provided, “that if any person shall abuse any judge or justice of the peace, resist or abuse any sheriff, constable, or other officer in the execution of his office, the person so offending shall be punished,” etc. The principle of ejusclem generis was invoked, and Chief Justice McIlvaine said: “It must be remarked that the rule of construction referred to above can be used only as an aid in ascertaining the legislative intent, and not for the purpose of confining the operation of a statute within limits narrower than those intended by the lawmaker. *129It affords a mere suggestion to the judicial mind that, where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace those not within the class. The suggestion is one of common sense. Other rules of construction are, however, equally potent, especially the primary rule, which suggests that the intent of the legislature is to be found in the ordinary meaning of the words of the statute. Another well established principle is, that even the rule requiring the strict construction of a penal statute, as against the prisoner, is not violated by giving every word of the statute its full meaning, unless restrained by the context.” After holding that the statute included a supervisor under the phrase of “other officer,” he proceeds to say: “This is the doctrine of the later cases generally, and especially those of American courts. It is not intended, however, to ignore the rule which requires penal statutes, as against the prisoner, to be construed strictly, and, in his favor, liberally. But it does prevent a construction, as against him, so strict, or, in his favor, so liberal, as to defeat the obvious intention of the legislature.” See, also, Reg. v. Doubleday, 3 E. & E. 500 (107 Eng. Com. L. Rep).
In Shillito v. Thompson, 1 Q. B. Div. 12, a prosecution was had under a by-law of Doncaster borough, which provided that if any butcher or dealer in meat, or any fishmonger, poulterer, or other person, should expose on his premises, or have in his possession with intent to sell or expose to sale any meat, fish, poultry, , or other victuals or provisions, unfit for food of man, he should be subject to penalty. The' defendant, a grocer, exposed for sale on his premises cheese which was unfit for food. He was convicted and on his appeal *130urged that “cheese is not ejusdem generis with meat and the other things mentioned in the bye-law,” but the conviction was affirmed.
In State v. Solomon, 33 Ind. 450, a statute for the protection of religious meetings provided that if any person should erect, bring, keep, contrive, or maintain any booth, tent, wagon, huckster shop, or other place for the sale of intoxicating liquors, cider, beer, or other drinks or for the sale of any other article whatever, etc., he should be punished, etc. It was shown the defendant sold cigars, tobacco, candies, peaches, and melons within the forbidden territory of a camp meeting. On appeal the supreme court of Indiana said: “The evidence * * * clearly brings the case within the letter and spirit of the amendment of 1865, above referred to. * * *' It is true that the articles sold .and for sale are not those that are specifically named in the statute, but they are ‘other articles’ spoken of in the law.”
So that while it is often safe to apply the maxim noscitur d sociis,” in the interpretation of the words of a statute, the courts look at the statute and every word of it, and statutes in pari materia, and consider the reason of the statute to ascertain its meaning, and are not bound by any one rule of construction, however useful it may have proved.
Applying the tests in Key don’s case, supra, we find burglary at common law as defined by Lord Coke was «committed when one in the nighttime broke and entered into a mansion house of another with intent to kill some reasonable creature or to commit some other felony within the same, whether his felonious intent was executed or not. 3 Inst. 63; 1 Hale, P. C. 549; 2 Russell on Crimes, 1.
By statute in most, if not all, of the states the common law has been modified so that the offense can *131now be committed in buildings of almost every kind ■constructed by mankind. It is thus evident that the legislature had in view the punishment of a large class of offenders, prowlers without visible means of support who were breaking into the storehouses and warehouses and unguarded buildings where valuable goods were kept and robbing them of their contents, and the remedy proposed was to make this offense burglary, though not included in the common law definition of that crime, but mitigating the degree of the crime, and grading the punishment therefor.
Burglary in the second degree by our statute, section 3526, Revised Statutes, 1889, is defined to be the “breaking and entering: First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, or ■any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise, or ■other valuable thing kept or deposited, with intent to ■steal or commit any felony therein.”
I think that it is perfectly plain that the lawmakers intended to throw the protection of this statute over any “building., in which there should be at the time some human being, or any goods, wares or merchandise, or other valuable thing kept or deposited, ’ and that the characterization of the building was only limited or restricted by the modifying clauses, to wit, "in which there should he at the time some human being or merchandise or valuable thing kept or deposited,” and not by the enumeration of other buildings by their usual designation. It seems too plain for construction that this was the obvious intention, and that “the chicken housebuilding” in this indictment falls not only within the letter but the spirit of the statute as well.
I do not think ejusdem generis can apply to a con*132struction of this section for another reason. That principle applies only when the specific words are all of the same class or nature. When they are of different genera the meaning of the general word is unaffected by its connection with them. The particular words, “shop” or “store” on the one hand, “booth” or “tent” on the other, and “warehouse” on still another, each exhausted whole classes, and each - distinct from the other, hence “other building” can not derive its color by association with any one of them nor by a mingling of all, but stands as the representative of a distinct class not specified by anything that preceded it but fully, definitely, and clearly, designated by the qualifying phrases that follow it. State v. Canney, 19 N. H. 135; State v. Wilson, 47 N. H. 101.
It seems to me evident that it was the intention of the lawmakers to punish the felonious breaking and entering into any building in which goods and merchandise or other valuable things were kept or deposited, it mattered not by what name such building was otherwise designated. The essential thing is that a human being must at the time be in the building, or goods, wares, merchandise, or other valuable thing must be kept or deposited in the building. These descriptive qualifying clauses are the connecting links between burglary and any building.
In Bethune v. State, 48 Gra. 505, the doctrine of ejusdem generis was invoked in a prosecution for burglary under a statute where the offense consisted in “breaking and entering into a dwelling, mansion, or storehouse, or other place of business of another where valuable goods, wares, etc., are contained or stored.” It was contended that unless the house was not a dwelling, mansion, or storehouse, it must be a place of business where the business carried on was similar to that which appertained to a storehouse, or the business *133place must be in tbe nature of a storehouse. But the supreme court of Georgia said: “The words, ‘or other place of business of another,’ are further defined by the qualification ‘where valuable goods, wares, produce, or any other article of value are contained or stored,’ and when the two terms of the sentence are put together just as they occur in the code, the places where burglary may be committed, beside dwellings, mansions, and storehouses, are as distinctly specified as if they were expressly limited to those three. Indeed, those other places are more accurately described and have a more express definition by the terms of the law itself than the word storehouse.”
In United States v. Wiltberger, 5 Wheat. (U. S.) 76, loc. cit. 95, Chief Justice Marshall says: “Though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow tbe words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend.”
Endlich on the Interpretation of Statutes, section 410, says: “The general object of the act, also, sometimes requires that the final generic word shall not be restricted in meaning by its predecessors. * * * Thus the 17 Geo. 3, chapter 56, which, after reciting that stolen materials used in certain manufactures were often concealed in the possession of persons who had received them with guilty knowledge, and that the discovery and conviction of the offenders was in consequence difficult, proceeded to authorize justices to issue search warrants for purloined materials suspected to be concealed ‘in any dwelling house, outhouse, yard, garden, or other place,’ was held to include, under, the last word, a warehouse which was a mile and a half from *134the dwelling house; though all the places specifically enumerated were such only as are immediately adjacent-to a dwelling.house.” Reg. v. Edmundson, 2 E. & E. 77; 28 L. J. M. C. 213. Though such a warehouse was not ejusdem generis, it was within the contemplation of the legislature.
Without further discussion, I hold the indictment sufficient and that the chicken house, in which were kept valuable fowls, was “a building” clearly within the letter and spirit of the statute. I concur in the first, third, and fourth paragraphs of the opinion of my learned brother, but respectfully dissent, for the foregoing reasons, from the second paragraph.