Opinion
No. 17863
Decided January 15, 1924.
Criminal law — Statutes strictly but reasonably construed — Construction by court unnecessary, when — Shooting at target within municipality — Section 12635, General Code.
1. Criminal statutes are strictly but reasonably construed in determining what offenses are included within them, and whether or not the essential facts stated in the charge constitute an offense under such statute.
2. Where such statute is clear as to its meaning, taking the entire context at its four corners, there is nothing for a court to construe.
3. Section 12635, General Code, by means of the words, "at a target within the limits of a municipal corporation," qualifies both shooting and firing either gun or pistol.
ERROR to the Court of Appeals of Stark county.
The facts are stated in the opinion.
Messrs. Emmons Emmons, for plaintiff in error.
Mr. Curtis M. Shetler, for defendant in error.
F.W. Widmer was found guilty in the municipal court of Alliance upon an affidavit charging him with "unlawfully discharging firearms within the corporate limits of the city of Alliance," alleged to be in violation of Section 12635, General Code, which reads:
"Whoever runs a horse, or shoots or fires a gun or pistol at a target within the limits of a municipal corporation, shall be fined not less than five dollars nor more than fifty dollars."
This is an old statute, enacted in 1831.
The following facts appear from the state's brief:
"The plaintiff in error is the owner of a small tract of land within the corporate limits of the city of Alliance, Ohio, upon which place he has attempted to raise goldfish by the construction of a number of artificial ponds. * * *
"The evidence shows that plaintiff in error was troubled at times with kingfishers preying, as he claims, upon the goldfish which he was raising on his premises."
The evidence shows that when these kingfishers made an attack upon his ponds and the goldfish therein he would discharge his gun for the purpose of either killing the kingfishers or driving them away, with the object of saving his property.
Upon such a state of facts, was Widmer guilty of the violation of Section 12635, no matter how artfully or adroitly the affidavit was drawn? Do such facts constitute an offense under that statute? The courts below all held that they do. This brings us to an examination of the statute. By common consent the first four words, "Whoever runs a horse," drop out of consideration, and we have left the following: "Whoever shoots or fires a gun or pistol at a target within the limits of a municipal corporation." If the language were "Whoever fires a gun or pistol at a target," there would be no question as to the meaning. The gun must be aimed at a target. A "target" is so well understood that it is unnecessary to define it. It does not require a sportsman to determine that a target is a mark fixed, at which aim is taken with a gun or other weapon. No one would think of calling a bird flying in the air a target, and the statutes certainly had no such purpose. If a bird in the air could be held to be a target, then anything at which aim was taken would be a target, and the language "at a target" would be wholly unnecessary.
It is a matter of rather common knowledge that in 1831, when this statute was enacted, horse racing and prize and practice shooting at targets were very common sports; the people from the rural districts, joining with the people of the towns and villages, would gather at stated intervals and have their contests. The Legislature, realizing the dangers from such sports within the municipality, made it an offense, compelling the parties that desired to indulge in these sports to go beyond the municipal limits, where the public would not be endangered by "horse racing" and "target shooting."
Now what are the limitations of the statute? First, so far as firearms are concerned there must be "a target." Second. To commit the crime one must shoot a gun or fire a gun or pistol at such target.
That this was the clear intention of the Legislature is obvious from the simple language it used. It is unnecessary and unprofitable to draw any hairline distinction between "shooting a gun at a target" and "firing a gun or pistol at a target." They are in substance one and the same thing. The weapon must be a gun or pistol. It must be shot or fired at a target, and it must be within the limits of a municipal corporation.
The original form of the statute, when first enacted, did not include the word "pistol." The pertinent part then was:
"If any person or persons shall shoot or fire a gun at a target within the limits of any recorded town plat in this state."
Would anybody claim that when the charge was "fire a gun," the words "at a target" need not be added as qualifying the firing and the gun? Some things are so self-evident they neither admit or permit argument.
If, now, the charge be in the words "shoot a gun," instead of "fire a gun," are not the same words "at a target" equally essential to constitute the offense? Can it be in common sense held that when you fire a gun it need be "at a target," under the statute, but when you "shoot a gun" it need not be "at a target," but may be any promiscuous shot, including defense of person, property, thieves, rattlesnakes, or birds, or animals of prey.
Now, when the word "pistol" was added, did that in any wise change the language or the meaning of the statute save and except that when a pistol is used it must conform to the same qualifications as a gun? There is entirely too much twist and technicality given to the statutes. If they are not complete, it is not the duty of this court to amend; that remedy remains in the Legislature.
If the contention claimed by the state is sound, then the simple, straightforward statement in the statute to the effect that "whoever shoots a gun or pistol within the limits of a municipal corporation" is all the language needed, because it is all the language that is given popular or legal effect. The presumption is the Legislature put the words "at a target" in the statute to be applied in their usual and ordinary sense, and to qualify all that went before, just as in a statute relating to frauds, where the statute very often concludes "with intent to defraud," which qualifies all that precedes it.
Take for illustration the statute on receiving stolen property (Section 12450, General Code). The pertinent part reads:
"Whoever buys, receives or conceals anything of value which has been stolen, taken by robbers, embezzled or obtained by false pretense, knowing it to have been stolen, taken by robbers," etc.
It is clear that this latter qualification modifies not only the words, "conceals anything of value," a phrase immediately preceding it, but also qualifies the word "receives" and the word "buys." It is quite unnecessary to repeat this qualifying phrase after each of the several words characterizing an act which is made criminal by the statute. So, here, in this case, it was unnecessary, when the words "or pistol" were inserted before the words "at a target" in the statute as it originally read to also insert the words "at a target" either after the word "gun" or after the word "shoot."
Surely and sanely it must be admitted that "at a target" qualifies the word "pistol" immediately before it. With equal force and reason it must be conceded that it likewise qualifies the word "gun" before the words "or pistol." But the gun or pistol in itself does not constitute an offense. It is the firing of the gun or pistol at a target that constitutes the offense. If the word "or" in "gun or pistol" does not cut off the words "at a target" from qualifying "gun," then with even equal or greater force the word "or" in "shoots or fires" does not cut off the words "at a target" from modifying "shoots," any more than it cuts off the words "at a target" from the word "fires." Common sense in the construction of statutes was never so much needed as today, whether it applies to the rights of the state or the defendant.
It might be contended that the word "unlawfully" in the charge is broad enough to include the language "at a target." For the purpose of argument let it be conceded, but that does not relieve the state from the obligation of proving by evidence the unlawfulness of the shooting, showing that it was at a target; and there is no proof whatsoever that the shooting was done at a target, unless a flying bird may, by strained, forced, and unnatural construction, be claimed to be a target, and no such contention is made by the minority.
It appears that this section of the statute is under the head of "Immoral Practices." That in itself would suggest that there must be some species of criminality, immorality, or wrong contemplated by the statute to be prohibited.
Upon the charge and the evidence, it clearly does not appear that any wrong, moral or legal, was committed by Widmer; that he was guilty of any offense against the laws of man or God. The judgments of the courts below are therefore reversed, and final judgment rendered in favor of the plaintiff in error.
Judgment reversed and judgment for plaintiff in error.
MARSHALL, C.J., ROBINSON, MATTHIAS and ALLEN, JJ., concur.
JONES and DAY, JJ. dissent from proposition 3 of the syllabus and from the judgment.
In view of the fact that this case deals with the sufficiency of a charge under an important misdemeanor statute of our Criminal Code, it is deemed advisable to state the reasons why the minority are unable to concur in the conclusions announced.
It is well established in this state that an indictment or affidavit in a criminal case should contain a complete description of the offense charged. It should set forth the facts constituting the crime, so that the accused may have notice of what he has to meet; of the act done, which it behooves him to controvert; and so that a court, applying the law to the facts charged against him, may see that a crime has been committed. Lamberton v. State, 11 Ohio, 282.
We are also not unmindful of the rule that a statute defining a crime or offense cannot be extended by construction to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute. State v. Meyers, 56 Ohio St. 340, 47 N.E. 138.
Tested by these rules, we think the affidavit filed in the municipal court of Alliance charged an offense under Section 12635, General Code. This statute is a very old one, having been passed February 17, 1831, 29 Ohio Laws, 161, 162. It is section 6 of "an act for the prevention of certain immoral practices," and the original section read as follows:
"That if any person or persons shall play bullets along or across any street in any town or village within this state; or if any person or persons shall run any horse or horses within the limits of any such town or village; or if any person or persons shall shoot or fire a gun at a target within the limits of any recorded town plat in this state: Every person or persons so offending shall be fined in a sum not exceeding five dollars, nor less than fifty cents."
Later it was amended by inserting the word "or pistol," and also by changing the penalty of not more than "five dollars nor less than fifty cents" to five dollars for the minimum and fifty dollars for the maximum.
The charge made against the plaintiff in error, defendant below, was that on the date named he "did willfully and unlawfully shoot or discharge a gun within the corporate limits of the city of Alliance, Ohio."
It is contended that, if the words "at a target" were contained in the affidavit, the offense would be correctly charged, but that the omission of said words is fatal. With this construction of the affidavit and statute we do not agree. The statute should be construed as though the word "gun" followed immediately the word "shoots" — the offense being the shooting of a gun within a municipality. The word "shoots" is clearly to be regarded as distinct from "fires," because these are acts undoubtedly the same in so far as the discharge of a firearm is concerned, and, if it was the intention to confine the statute to shooting at a target, what was the purpose of using both words when but one would suffice?
The language is "shoots or fires a gun." The use of the disjunctive "or" indicates an intention on the part of the Legislature to express an alternative, and not the same act; that is to say, whoever shoots a gun in a municipality is guilty of an offense, or whoever fires a gun at a target in a municipality is likewise guilty.
The construction of the majority requires the conclusion that the same act, to-wit, shooting or firing a gun at a target, is the offense. This we do not think was the legislative intent, because the use of different words to describe exactly the same act would be unnecessary, but the intention is clearly apparent to our mind that, by the use of the disjunctive "or," it was intended to create two different methods by which the offense could be committed.
The object of the statute was doubtless, as re cited in its title, for the prevention of certain immoral practices, such as Sabbath breaking, selling spirituous liquor on Sunday, disturbing religious societies, profane swearing, inciting disturbances at public meetings of citizens, and a number of other acts going to make up offenses against the peace and quiet and orderliness of a neighborhood and community. It is as reprehensible to indulge in miscellaneous, heedless, and careless shooting within the limits of a municipality as it is to shoot at a target, for the safety, peace, quiet of a neighborhood and community are quite as much disturbed thereby, and probably safety much more so, than if the shooting took place at a fixed target, as contended by the majority; and, so far as the word "target" is to be construed as a fixed object, such a construction is far too narrow, for it is well known that shooting at inanimate targets that are moving is a very common practice in the use of guns.
Entertaining the view that the affidavit filed in this case states an offense under the statute, and that, under the conceded facts, no constitutional rights of the accused were invaded, we are of opinion that the three courts below, to-wit, the municipal court of Alliance, the court of common pleas of Stark county, and the Court of Appeals, were right, and that the judgment should be affirmed.
JONES, J., concurs in the dissent.