Summary
In State v. Aspell (1967), 10 Ohio St.2d 1, 39 O.O.2d 1, 225 N.E.2d 226, paragraph two of the syllabus we held: "Under the rule of ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms."
Summary of this case from Moulton Gas Serv., Inc. v. ZainoOpinion
Nos. 40194 and 40195
Decided March 29, 1967.
Criminal law — Indictment under specific criminal statute — No proof of offense under such statute — No valid conviction — Statutory construction — Ejusdem generis — Legislative intent — Forcing entry into "depository box" — Section 2907.12, Revised Code — Cigarette vending machine not included.
1. Where an indictment is drawn and returned against a defendant under a specific criminal statute, and the evidence upon trial discloses the commission of no offense within the provisions of the statute, a judgment of conviction must be reversed.
2. Under the rule of ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.
3. The term, "depository box," conjoined with the words, "safe" and "vault," as used in Section 2907.12, Revised Code, does not include a cigarette vending machine and an open receptacle therein containing coins which have been deposited there for the purchase of packages of cigarettes.
APPEALS from the Court of Appeals for Franklin County.
The Grand Jury of Franklin County returned a one-count joint indictment, framed under Section 2907.12, Revised Code, against Warren F. Kuns and Ervin R. Aspell, defendants in the Court of Common Pleas and the appellees herein, charging in part that they "on or about the 16th day of November * * * [1964] within the county of Franklin aforesaid, did maliciously and forcibly, by and with the aid of hand tools, force an entrance into a depository box containing money, belonging to the Ace Vending Company * * *."
Section 2907.12, Revised Code, under which the indictment was drawn, reads:
"No person, by day or night, maliciously and forcibly, with the aid and use of any instrument, device, or explosive, shall blow or attempt to blow, force or attempt to force, an entrance into a safe, vault, or depository box wherein is contained any money or thing of value.
"Whoever violates this section shall be imprisoned not less than one nor more than twenty years."
Upon a jury trial, both Kuns and Aspell were found guilty, and the court sentenced them to serve terms in the Ohio Penitentiary for the time provided by law.
Appeals on questions of law were taken to the Court of Appeals, where by a two-to-one vote of the judges the judgments below were reversed and vacated.
The two closing paragraphs of the majority opinion of the Court of Appeals in the Aspell case are as follows:
"In our opinion, the evidence of record is insufficient to establish an essential element of the felony charged in the indictment, i. e., forcible entry with the aid of an instrument or device. The court, therefore, erred in failing to enter a directed verdict.
"The judgment of the Common Pleas Court will be reversed and vacated. A final entry of dismissal may be submitted to this court."
Such opinion and the dissenting opinion are reported in 5 Ohio App.2d 44, 213 N.E.2d 748.
The causes are now in this court for decision on their merits pursuant to the allowance of motions for leave to appeal and appeals on constitutional grounds.
Mr. C. Howard Johnson, prosecuting attorney, and Mr. James A. Pearson, for appellant.
Mr. Joseph H. Hans, for appellees.
It is disclosed by the evidence that the "depository box" mentioned in the indictment was a metal cigarette vending machine of a familiar type, owned and serviced by the Ace Vending Company and located in the rear of Sandy's Drive-In at the Northern Lights Shopping Center in Franklin County. There was a slot in the upper section for the insertion of coins for cigarette purchases, and the receptacle for the coins inside the machine consisted of a ten-pack cigarette paper carton with its top removed.
Immediately engaging our attention is the question whether a "depository box" is involved here within the contemplation of Section 2907.12, Revised Code. First referred to in that section are "safe" and "vault." Those words, considered together, strongly suggest iron or steel containers ordinarily found in banking institutions or in business establishments, which are used for the storage of money, jewelry, other valuables and important papers and documents. One pictures a safe as an iron or steel depository for the safekeeping of assorted valuables and a vault as a large arched or square structure located in a protected area such as an underground basement and built of stone, bricks, concrete or steel, where a variety of valuables are usually stored. One dictionary definition of a vault is "a chamber used as a safe." Where the words, "safe," "vault" and "depository box," are conjoined, one must interpret "depository box" as related to the words which precede it.
A well-known legal maxim is " ejusdem generis," which literally translated means "of the same kind or species." So, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term is conjoined having perhaps a broader signification, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms. Chichester Chemical Co. v. United States, 49 F.2d 516, 518, 60 App. D.C. 134, 136. See, also, Glidden Co. v. Glander, Tax Commr., 151 Ohio St. 344, 350, 86 N.E.2d 1, 4, 9 A.L.R. 2d 515.
Under such approach it is difficult to place a cigarette vending machine and the container for coins inside it as a "depository box" within the meaning and intendment of that term as used in Section 2907.12, Revised Code. This is more strikingly apparent when "safe," "vault" and "depository box" are all connected with the words, "any instrument, device, or explosive," as contained in the statute. Of course, under the concept of criminal law obtaining in this state any substantial doubt as to the meaning of "depository box" must be resolved in favor of the appellees.
And there may be merit to the argument of counsel for the appellees that a "depository box" as that term is commonly understood is a receptacle wherein valuables are placed for safekeeping by the owner to be reclaimed by him in kind, whereas a vending machine is a mechanical device in which money is placed by a buyer for which he receives in exchange articles or merchandise from the machine.
The evidence in this case against appellees shows the commission of no offense within the provisions of Section 2907.12, Revised Code, and there could be no valid conviction under the indictment as drawn and returned.
We are aware of the cases of Commonwealth v. Tilley, 306 Mass. 412, 28 N.E.2d 245, 129 A.L.R. 381, and Hull v. State (Ohio App.), 20 Ohio Law Abs. 635, but we submit they are distinguishable from the instant ones.
On the basis of the foregoing observations, the judgments of the Court of Appeals are affirmed, although on a different ground than adopted by that court and without necessarily disagreeing with the conclusions reached by a majority of that court.
Judgments affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.