dissenting: I do not agree with the interpretation of the statute involved in this case, as set forth in the foregoing opinion. The facts presented are not in controversy. Although the officer who arrested the defendant supposed the Ford car which was in his possession was a stolen car, the officer himself stated that upon further investigation he found that it had not been stolen, but that the defendant had purchased it from its -rightful owner, as indicated by the bill of sale he exhibited. It is further admitted that after the defendant had purchased this secondhand car, it became damaged in some manner and the engine was taken out, and the engine block upon which the engine number was stamped was damaged so that it could no longer be used, and the defendant took the engine out of the block and scrapped the block. He then bought a secondhand block from the Sherman Motor Company, which they had taken out of some other car. The number on this secondhand block had originally been No. 7286043 and when the Sherman Motor Company dismantled that engine, the block being a good block and the Sherman Motor Company desiring to sell it for what it might be worth, they made a blank block out of it by filing out that number. It is further admitted that the “original engine number” of the car purchased by the defendant, as stamped on the engine block in that car, was No. 9515119, and when the engine block in that car became damaged and it was necessary to replace it with another block and the defendant did so replace it with the secondhand block purchased from the Sherman Motor Company, on which there was no number when it was so purchased, the defendant stamped on it the “original engine number” of his ear — No. 9515119; — so that when the defendant was arrested and charged with a violation of section 35 of the Motor Vehicle Act [Cahill’s St. ch. 95a, [[36] because of his possession of this car, it bore the same engine number which it had always home. There was, therefore, nothing whatever about the car to confuse its identity, either intentionally or unintentionally.
While the foregoing facts might have been put into this record in better form,, they are there, and, as above stated, the record shows that there is no controversy between the parties on these facts, for it is admitted by counsel for the State that they correctly represent the situation. I, therefore, of -course, do not differ from my associates in the decision of this case so far as the facts are concerned.
Such being the facts of the case, I am firmly of the opinion that a violation of the Motor Vehicle Act has not been shown. This is a penal statute and therefore should be construed strictly, especially in view of the fact that it goes so far as to provide a penalty for the doing of certain specified things, irrespective of intention. In my opinion, a reasonable construction of section 35 of the act, especially when it is considered in compliance with the rule just mentioned, shows that it does not cover the facts presented here.
This section provides clearly that anyone who sells or offers for sale or who shall own or have the custody or possession of “a motor vehicle, the original number of which has been destroyed, removed, altered, covered or defaced,” shall be fined or imprisoned, as therein provided. It seems to me to be too clear to admit of any reasonable doubt that the “original engine number”' of the motor vehicle, possession of which by the defendant is the basis of the prosecution in this case, had not been “destroyed, removed, altered, covered, or defaced,” but, on the other hand, it had been preserved and retained, at some pains, for the secondhand block which the defendant had purchased to replace the damaged block bore no number when it was so purchased, and when the defendant installed it in his car he stamped upon the block “the original engine number” of his motor vehicle.
It is. admitted that if the defendant had purchased a so-called blank block, which had never been used before and installed that in his car, and stamped the “original engine number” of his car upon it, it would have been all right. It is impossible for me to appreciate any. difference between that situation and the one involved by the facts presented here. In either case, the defendant was in possession of a motor vehicle “the original engine number of which” was plainly stamped in the usual and customary place on the engine block of that vehicle. I disagree entirely with the conclusion of the majority as expressed in the last paragraph of the foregoing opinion. The evidence shows- without contradiction that the block which- the defendant purchased from the Sherman Motor Company was- just as much a blank block as if it had» never been used. The defendant testified that the block he purchased from, the Sherman Motor Company “was blank. Had no number on it, no number at all.” There is no evidence to the contrary in the record. One of the police» officers testified that he looked at the car in question and “noticed the numbers had been changed.” He doubtless* saw that the flat spot on which the engine number was stamped bore recent file marks, showing that the number which had been on that block (not the original engine number of this motor vehicle) had been .filed out, because he testified further “after we put the test on it,” another number showed up as having been originally stamped- on that block. And it is admitted that this secondhand block originally bore another number. That, however, has nothing, to do with the question, which is, whether the defendant had in his possession this motor vehicle, “the original number of which” had been destroyed or changed so as to hide the identity of the motor vehicle. Clearly, in my opinion, he had not.
The defendant in this case has been convicted of a violation of this- statute and penalized as provided by that statute, not because he had in his possession “a motor vehicle the original number of which has been destroyed, removed, altered, covered or defaced,” but, as the foregoing majority opinion distinctly says, because he had installed in his motor vehicle a block which had been taken out of another automobile and which had originally been stamped with the original engine number of that automobile. The majority opinion states that if the defendant may do this, “then the identity of the automobile from which the secondhand block had been removed,” would be destroyed and thus the purpose sought to be accomplished by the law would be nullified. In my opinion, that is entirely beside the point. This defendant may not be penalized under this statute except with regard to a motor vehicle found in Ms possession or custody, or offered for sale by him. And this statute may not be applied, so far as the other automobile is concerned, to anybody except one who may offer to sell it or be in possession of it, provided the original engine number of that automobile “has been destroyed, removed, altered, covered or defaced.” This record is entirely silent as to the other automobile, and properly so, for it has nothing to do with the charge against this defendant.
It seems to- me that the foregoing opinion has the effect of re-writing the statute, so as to make it say what the majority believed it might better have provided, to meet what is deemed to have been the intention of the legislature in enacting it. The majority, in my opinion, decided the issues here presented as though the statute provided that whoever sells or-offers for sale or owns or has the custody or possession of a motor vehicle with an engine block in it on which a prior number has been filed off and a new number stamped upon it, shall be penalized, even though the new number so stamped upon the block may be the “original engine number” of the motor vehicle. In my opinion, that is not what this statute provides, even under a liberal construction of it, let alone the strict construction, which, under the law, we should give it.
The purpose of the legislature in passing this statute is clearly set forth in the majority opinion, as our Supreme Court has stated it in the Billardello case, supra. It is impossible for me to appreciate how the admitted facts of this case may reasonably be so construed as to come within that purpose.
For these reasons, I am of the opinion the judgment of the municipal court should be reversed.