People v. McKean , 76 Cal. App. 114 ( 1925 )

Defendant was charged with offering his services to assist in the accomplishment of a miscarriage. It was the theory of the prosecution that the charge as laid stated all the essential elements of the offense denounced in the concluding clause of section 317 of the Penal Code. Whether the information does charge every essential ingredient of that offense is the principal question presented by this appeal. Defendant, who was found guilty as charged, appeals from the judgment of conviction and from an order denying his motion for a new trial.

Section 317 reads: "Every person who wilfully writes, composes or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by anynotice, advertisement, or otherwise, to assist in the accomplishment of any such purpose, is guilty of a felony." (Italics ours.) [1] The charging part of the information is as follows: "The said defendant on or about the 24th day of December, 1924, at the said County of Riverside, State of California, and before the filing of this information, did wilfully, unlawfully and feloniously offer to Sanders Reynolds to produce and assist in the accomplishment of a miscarriage on Virginia Reynolds." It will be noticed that the information is barren of any charge that appellant offered his services by any notice, advertisement, or other like means. The evidence also fails to show that defendant offered his services by any of those means. Giving to the evidence a construction most favorable to the prosecution, it discloses no more than a mere oral offer by defendant, made directly to Sanders Reynolds, the husband of Virginia Reynolds, whereby defendant proffered his services to produce a miscarriage of the wife.

Appellant contends, and, as we think, rightly contends, that the information does not state a public offense. [2] The sufficiency of that pleading was not challenged in the court below by demurrer. Defendant, however, upon the conclusion of the People's evidence, moved the court to dismiss the case upon the ground that a public offense is not stated in the information. The motion was denied. If the information fails to charge, and if the evidence fails to prove, that defendant committed any public offense known to the laws of this state, then clearly appellant will be entitled to a reversal notwithstanding his failure to file a demurrer in the court below. [3] Where there is an absolute omission of a fact which the statute makes an essential ingredient of the offense, the defect is one of substance and not merely one of form. In such case the defect is not merely the failure to allege a necessary fact with sufficient certainty; it is a failure to charge any public offense whatever. So radical a defect is not waived by neglecting to file a demurrer, but may be raised at any time. (People v. Smith, 103 Cal. 563 [37 P. 516].) ". . . neither the neglect to demur or move in arrest of judgment can be deemed a waiver of an objection based upon the ground that the indictment or information does not state a public offense. Such an objection might be raised at any point in the progress of a case, or upon appeal." (8 Cal. Jur., p. 500.) [4] Whether the information does omit the allegation of a fact necessary to constitute the offense defined in the concluding portion of section 317 depends upon the meaning to be ascribed to the words "or otherwise," in the provision that "Every person who wilfully . . . offers his services by any notice, advertisement, or otherwise, to assist in the accomplishment of any such purpose [i.e., in the production or facilitation of a miscarriage or abortion,] is guilty of a felony."

The section as a whole seems to be aimed against advertisements, i.e., advertisements of certain means for producing miscarriages or abortions or for preventing conception. Thus the first part of the section declares that "Every person who wilfully writes, composes or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, . . . is guilty of a felony." This part of the section speaks of "medicine" or "means" for producing or facilitating miscarriages or abortions or preventing conception. Just what is here meant by the word "means" is not clear. It is possible that it may include surgical instruments. This first part of the section is directed against the writing, composition, or publication of such notices or advertisements as are designed to bring home to the public a knowledge of certain "medicines" or "means," i.e., a knowledge of such agencies as may be used at any place and by any person — by the woman herself, for instance — to bring about an abortion or a miscarriage or to prevent conception. The concluding part of the section, that under which it was sought to charge appellant, deals, not with medicines, drugs, instruments, etc., but with "services," i.e., an agency which necessarily must be exercised upon the body of the woman by another, viz., by the person offering his services. This part of the section makes it a crime for one to offer "his services" to assist in the accomplishment of any miscarriage or abortion. But a mere offer of services is not enough. More than that is required to bring the offerer within the terms of the offense denounced by the statute. He must offer his services by "notice, advertisement, or otherwise." Here, then, we have three classes of means for bringing to others a knowledge of the offer of services, one at least of which must be resorted to by the person offering his services in order to constitute the crime denounced by that part of section 317 under which it was sought to charge appellant. These are: (1) an advertisement; (2) a notice; (3) other means. We say "other means," for the word "otherwise" signifies "other means."

The word "advertisement" has been defined as "a notice published in handbills or a newspaper." (2 Cor. Jur. 294.) The word also includes notice by posting or display on signboards. (Id.) In Carter v. State, 81 Ark. 37 [98 S.W. 704], the court says: "The many uses of the term ``advertise,' in its various forms, may be found in the Century Dictionary, from which this definition, the one most nearly reaching to the facts here, is taken: ``The act or practice of bringing anything, as one's wants or one's business, into public notice, as by paid announcement in periodicals, or by handbills, placards, etc., so as to secure customers by advertising.'" The idea underlying the word "advertisement" has reference not so much to the vehicle or instrumentality used for getting the notice before the public, as to the diffusion, or bringing home to the public, of the information or matter contained in the notice. (Cincinnati v.Fenner, 11 Ohio S. C.P. Dec. 281, 287.)

The word "notice," in its broadest significance, doubtless includes any means whereby intelligence or knowledge is communicated. But according to the rule of interpretation"noscitur a sociis," the word should be construed in connection with its associated word "advertisement," thus giving to each a kindred meaning. This conclusion is further strengthened by the consideration that the first part of the section refers to such "notice or advertisement" as may be written, composed, or published — i.e., the first part of the section refers to written, printed, or pictorial matter only. The word "notice," as used in both clauses of section 317, doubtless was intended to include such notices as are sent through the mail; also circulars left upon doorsteps, etc.

We think that the term "or otherwise," in the provision "Every person who wilfully . . . offers his services by any notice, advertisement, or otherwise, . . . is guilty of a felony," should be construed as signifying other like means, i.e., means which are of the same general nature or class as advertisements, or which are of the same general nature or class as those notices which are akin to advertisements. [5] This construction is warranted by the rule "ejusdemgeneris," which is stated in Cyc. as follows: "By the rule of construction known as ``ejusdem generis,' where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The particular words are presumed to describe certain species, and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious reason that if the legislature had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes. The words ``other' or ``any other,' following an enumeration of particular classes, are therefore to be read as ``other such like,' and to include only others of like kind or character." (36 Cyc., pp. 1119, 1120. See, also, Pasadena University v. Los Angeles County,190 Cal. 790 [214 P. 868].) In Galveston Co. v. Gorham, 49 Tex. 290, the supreme court of Texas, construing a statute of that state, says: "The word ``otherwise,' in that part of the sentence ``by sample, card or otherwise,' should be understood, as doubtless intended, to mean ``by other like means.'" In Ex parteWilliams, 7 Cal. Unrep. 301 [87 P. 565], the district court of appeal for the third appellate district of this state had before it a habeas corpus proceeding, the petitioner wherein had been charged with carrying on a certain banking game, played by means of a slot-machine, "for . . . representatives of value, towit, cigars and tobacco," in alleged violation of section 330 of the Penal Code. That section makes it an offense to carry on any banking game, played with cards, dice, or any device, "for money, checks, credit or other representative of value." In holding that cigars and tobacco are not "other representatives of value" within the meaning of the statute, Mr. Justice Buckles said: "If the legislature was intending to prohibit all gambling with banking devices or by banking games played with cards, dice, or any device, it seems to us there would have been no limitation as now to money, checks, or credits, but the statement would have been for anything of value or that represents value. . . . The rule seems to be well established in the interpretation of statutes and clauses like the one under consideration that where general words follow particular ones, the former are construed as applicable to persons or things of the same kind, class or nature." In Rhone v. Loomis, 74 Minn. 200 [77 N.W. 31], the court had under consideration a statute which made it an offense to exclude any person, on account of his race, color, or previous condition of servitude, from "restaurants, barber shops, eating houses, or other places of public . . . refreshment." In holding that saloons, or places where intoxicating liquors are sold as beverages, are not "places of public refreshment" within the meaning of the act, the Minnesota supreme court says: "We concede that the word ``refreshment' may include intoxicating liquors, and that the words ``place of refreshment' may be used in such a connection as to include a place where such liquors are sold as a beverage. But here is a case where the legislature has specifically enumerated, in a somewhat descending order according to rank or importance, every kind of place of refreshment which was presently in mind to which they intended the act to apply, but have omitted, apparently purposely, to enumerate places where intoxicating liquors are sold as a beverage. . . . We are of opinion that upon these facts it is not permissible, under any proper application of the doctrine of ejusdem generis, or what is commonly called ``Lord Tenterden's rule,' to extend the meaning of the general words ``or other public place of refreshment' so as to include places where intoxicating drinks are sold. This rule, generally stated, is that where a statute or document specifically enumerates several classes of persons or things, and immediately following, and classed with such enumeration, the clause embraces ``other' persons or things, the word ``other' will generally be read as ``other such like,' so that persons or things therein comprised may be read as ejusdem generis ``with,' and not of a quality superior to or different from, those specifically enumerated. [Citing authorities.] The reason of this rule is that ``if the legislature had meant the general words to apply, without restriction, it would have used only one compendious word.'" In State v. Dennison, 60 Neb. 157 [82 N.W. 383], the statute provided: "If any person shall open or establish, as owner or otherwise, any lottery or game of chance in this state," etc. In construing the term "or otherwise," following the word "owner," it was held that it should be restricted to the meaning of "owner," or someone in similar or like capacity.

The rule ejusdem generis is particularly applicable to penal statutes. In Matter of La Societe Francaise, 123 Cal. 531 [56 P. 460], our supreme court says that "there is little, if any, controversy as to the maxim in its application to penal statutes." The supreme court of Missouri, speaking of the application of the doctrine in criminal cases, says that "as applied to penal statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law." (Ex parte Neet, 157 Mo. 527 [80 Am. St. Rep. 639, 57 S.W. 1025].) See, also, Ex parteRoquemore, 60 Tex. Cr. 282 [32 L.R.A. (N.S.) 1186,131 S.W. 1101], where the court quotes from Ex parte Muckenfuss, 52 Tex. Cr. 467 [107 S.W. 1131], as follows: "It has been held also that this rule [ejusdem generis] is especially applicable in the interpretation of statutes defining crimes and regulating their punishment." In this state the rule is given express statutory recognition, it being declared in section 3534 of the Civil Code that "Particular expressions qualify those which are general."

[6] It is true that the maxim ejusdem generis is only a rule of construction, to be applied as an aid in ascertaining the legislative intent, and that it does not control where it clearly appears from the statute as a whole that no such limitation was intended. But we venture to assert that no authority can be found where the general words "or otherwise," when following particular and specific words, have been construed as having their unrestricted sense where such a construction would cause the preceding particular words as well as the general words to become meaningless surplusage. And yet that is precisely the result which must inevitably follow if the words "or otherwise," as used in section 317, be given their full unrestricted meaning. That is to say, if the words "or otherwise" be not construed as meaning "other such like means," then the whole phrase "by any notice, advertisement, or otherwise" becomes mere barren verbiage, sterile of effect. This is so for the reason that every offer of one's services necessarily implies the giving of notice of some sort to the person to whom the offer is made. To "offer to do a thing," says the court in Morrison v. Springer, 15 Iowa, 346, "is to bring to or before — to present for acceptance or rejection — to exhibit something that may be taken or received or not." See, also,People v. Ah Fook, 62 Cal. 494. Since the words "or otherwise," if used in their unrestricted sense, would embrace that notice of one's offer of his services which necessarily is included in the mere making of the offer, it seems clear that had it been the intention of the legislature to employ those general words without restriction it would have said no more than that it shall be an offense for one to offer his services to produce a miscarriage or an abortion, omitting entirely the provision to the effect that such offer, to be criminal, must be made by "notice, advertisement, or otherwise." Unless, therefore, the general term "or otherwise" be construed as ejusdem generis with the preceding particular and specific words, then the whole phrase "by any notice, advertisement, or otherwise" may as well be stricken from the statute as an impotent inutility.

While we are satisfied that the term "or otherwise," as used in this code section, is equivalent to the term "or other such like means," we do not find it necessary to decide, and we expressly refrain from deciding, the precise content of the words "or otherwise," i.e., the precise kind of notice which would satisfy their requirement. Suffice it to say that, for the reasons above stated, these words must be held to mean that the offer of services must be made through or by means of notice of some kind other than such as necessarily is involved in the mere act of making the offer. But here the information makes no attempt to charge that the offer of appellant's services was made by means of any notice of any kind whatsoever, save only such as necessarily is implied in the mere act of offering one's services.

The judgment and the order denying a new trial are reversed.

Works, J., concurred.