State v. Turner , 21 Mo. App. 324 ( 1886 )

Rombauer, J.,

delivered the opinion, of the court.

The statute provides that, “If any person, or persons, shall wilfully and knowingly obstruct, any public road, by throwing or depositing osage orange, or other brush, trees, or bushes, in said road, or on the sides or ditches thereof, or by fencing across the same, or by planting •any hedge within the lines established by said road, or changing the location thereof otherwise than is provided for by this act, or shall obstruct said road ox highway in any other manner whatsoever, he, or they, shall each pay a line of not less than twenty dollars, to be recovered by indictment,” etc. Laws 1883, p. 165, sect. 33.

For an alleged violation of this law, an indictment was preferred by the grand jury of Clarke county against the defendant in the following words:

“ State oe Missouri, j “ County oe Clarke. j b ’

“In the circuit court of Clarke county, Missouri, October term, 1884.

“The grand jurors for the state of Missouri, empanneled, sworn, and charged to inquire in and for the body •of the county of Clarke aforesaid, upon their oath present that heretofore, to-wit, on the first day of September, A. L. 1884, and at the county of Clarke, in the said state of Missouri, one C. B. Turner unlawfully, wilfully, and knowingly did obstruct a certain public road or highway leading from Wilson bridge to Alexandria, known as the Alexandria road, and near the center of half section line of thirty-one, township sixty-five, range seven, in Clarke county, Missouri, by digging out a ditch, and by removing the dirt and other material from and out of said ditch that had been there put and placed by the proper authori-. ties, said ditch running along near the center of said public road, to the great hindrance and inconvenience of the public and the citizens of this state.

“ J. W. Reed, Prosecuting Attorney.”

The defendant demurred to this indictment, on the ground that it failed to charge any crime known to the laws of the state, and his demurrer was sustained by the trial court.

The court presumably held that as the indictment did not charge an obstruction in any of the modes enumerated in the statute, it could not be helped by the sweeping clause at the close of^the section, “or shall obstruct said road or highway in any other manner whatsoever.”

If this statute had created a new offence, then the holding of the court would have been strictly correct. In such cases it is an undoubted rule of construction, that where general words follow particular ones, the former ought to be construed as applicable to persons and things particularly mentioned. Sedgwick on Const. Law, 423; City of St. Louis v. Laughlin, 49 Mo. 561; Knox City v. Thompson, 19 Mo. App. 523. The words “in any other manner whatsoever” would, in that, event, have been ineffectual'to make the indictment good, because the offence charged therein is not of the same-class as the offences specially enumerated.

Here, however, the statute creates no new offence, but merely enlarges an offence indictable at common law. 2 Bishop on Crim. Law, sect. 1273, note 6, and sect. 1284.

If there was no statute on the subject, the indictment would have been good at' common law. The State v. Appling, 25 Mo. 315; The State v. Rose, 32 Mo. 560.

In view of the general rule that statutes should be construed with reference to the subject matter, the objécts which prompted their enactment, and the mischief they were intended to remedy, the general clause in this statute should be construed as referring to any other obstructions of a highway indictable at common law. It would be a forced and- irrational construction to hold that the statute provided for the punishment of one, who, by throwing brush into the highway, partly obstructed the unlimited use thereof, and yet permitted one to go scathless who, by digging a pit therein, endangered the safety of the traveling public.

It results that the indictment states an offence under the statute. It clearly states one at common law. In either event the trial court erred in sustaining a demurrer thereto.

The judgment is reversed and the cause remanded.

All the judges concur.