
    Martin v. The State of Ohio.
    
      Discharge of fire-arms and unintentional hilling — Not manslaughter, when — Section 6962, Revised Statutes.
    
    1. One who discharges fire-arms on his own premises is not guilty of a violation of section 6962, Revised Statutes.
    2. One who unintentionally shoots and kills another by discharging fire-arms on his own premises is not thereby guilty of manslaughter.
    (No. 8346
    Decided June 7, 1904.)
    Error to the Circuit Court of Jackson county.
    The plaintiff in error was indicted and tried in the court of common pleas for murder in the second degree and was convicted of manslaughter. On the-trial the evidence tended to show that on the night prior to the alleged murder some boys were making' a noise with tin cans through the bottom of which a string had been run and then resined. It was in the woods near the house where the plaintiff in error-lived. He and his father, not knowing what the-noise was, went in that direction taking their gun with them. The boys ran away, and in a conversation that evening, the plaintiff in error, being-laughed at for taking his gun and going out after a noise made by a lot of boys, stated that if the boys-did not have any more sense than to make such a noise in the night, he did not have any more sense-than to shoot, or words similar to those. The next-night, to-wit, the twenty-seventh of August, 1902,. about half past seven o ’clock standard time, the deceased and another boy took a can and went to the top of a hill immediately south of where the plaintiff' in error lived, but had made no noise before the time the shot was fired. Two other boys were making a noise with cans in another direction from the-house of Martin, when the defendant stepped into the house and procured a rifle, and as he stepped out. his father said to him, in substance, be careful, you might shoot some one. Martin answered that he would shoot into the tree tops. He stepped out into-the yard, and for the purpose of frightening the perpetrators of the noises, held the gun up in the air- and fired it toward the hill top, and the ball struck and killed Heber Farrar, at a distance of about two ' hundred yards. Afterwards, when Martin learned that Farrar had been shot, he went to where he was, took his head in his arms, and admitted that he fired the shot that killed him. There never had been any trouble between them. There was no moonlight, but ■starlight. There was no dwelling house in the direction in which the shot was fired, although there were three dwelling houses in other directions within gun shot of the point where Martin stood when he fired. The circuit court affirmed the judgment of the court of common pleas.
    
      Mr. Elmer C. Powell and Mr. R. R. Lively, for ■plaintiff in error.
    We insist:—
    
      First. That under the provisions of this statute Martin is not guilty of manslaughter simply because he discharged a fire-arm in his own door yard and thereby accidentally killed Heber Farrar.
    
      Second. That the statute as originally enacted, 71 O. L., 148, sec. 4, did not make the discharge of fire-arms upon a man’s own premises penal.
    
      Third. That it was not the intention of the codifying commission appointed to revise the statutes, to give a different meaning to the statute by changing the language, or by transposing the words.
    
      Fourth. That if the commission did so intend and the statute must be construed as claimed by the state, it is unconstitutional because in conflict with ■sections 1 and 4 of the bill of rights, if it is not un■constitutional giving it the construction we claim for it. Johnson v. State, 66 Ohio St., 59.
    Though penal statutes are strictly construed, yet legal words are used in their recognized legal sense, and the adoption in a statute of a common law definition is with its settled construction. Turner v. State, 1 Ohio St., 422; Mitchell v. State, 42 Ohio St., 383.
    It is apparent that the codifiers understood that these grounds if appurtenant to, were a part of the messuage; and in fact, in law a part of the dwelling house.
    If this statute can be so construed as to avoid absurdities, injustice and great inconvenience, such construction must be given. Railway v. Jump, 50 Ohio St., 651; Moore v. Given, 39 Ohio St., 661; Black Interp. of Laws, 100, 102, 103; Burgett v. Burgett, 1 Ohio, 469; Moore v. Vance, 1 Ohio, 1; Hutcheson v. McNutt, 1 Ohio, 16; Wilber v. Paine, 1 Ohio, 251; Spiedel Grocery Co. v. Armstrong, 4 Circ. Dec., 498; 8 C. C. R., 489; Black Interp. Laws, p. 170.
    Let us grant for the sake of argument that the words “any other ground” are not qualified by the words “the property of another.” What does the word “ground” mean when taken in connection with the specific and particular grounds mentioned in the statute? The rule is that when general words follow specific words, they are to be restricted in their meaning to the same kind or class as are the specific words. Endlich on Interp. Stat., sec. 405; Black Interp. of Laws, sec. 63; Rutherfoord v. Railroad, 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312; Myers v. Seaberger, 45 Ohio St., 234; Shultz v. Cambridge, 38 Ohio St., 659; State v. Liffring, 61 Ohio St., 39.
    If, in construing this statute, the general rule is to be applied, then the words “any other ground” must mean any other ground of the same general kind and character as those specifically mentioned. It is conceded that the ground upon which Martin stood was his own door yard, and hence, could not be in any sense, appurtenant to the dwelling house of another person, nor was it of the same character, as the grounds mentioned in the act.
    Looking then to the title, ánd to the original act itself, we find that it was passed for the purpose of protecting landowners from the trespasses of others upon their enclosed lands. State v. Kelly, 54 Ohio St., 166.
    Punctuation should he considered when other means of construction fail. Albright v. Payne, 43 Ohio St., 8; Trustees v. White, 48 Ohio St., 577. It is apparent that if the words, “property of another” had been intended to qualify and limit “dwelling house ’ ’ alone, there would have been no comma after the words “dwelling house.” Conger v. Barker, 11 Ohio St., 1; 44 Ohio St., 249; Black Interp. of Laws, p. 368.
    The original statute may be examined to ascertain the intention when a statute is susceptible of two constructions. Black on Interp. of Laws, 365; Heck v. State, 44 Ohio St., 536.
    It will be observed that the penalty is the same now as in the original. An intended change in meaning would probably have required a change in penalty. . .
    Assuming, as is claimed, that the codifying commission has undertaken to change the intent and meaning of this statute, .we maintain that the legislature gave it no power so to do.
    An examination of the statute giving it authority to codify the laws will at once reveal this fact. State v. Stout, 49 Ohio St., 270.
    If the statute is to receive the construction claimed by the state such construction makes it clearly unconstitutional, because in conflict with the rights guaranteed by sections 1 and 4 of the bill of rights.
    
      Mr. A. E. Jacobs, prosecuting attorney, for defendant in error.
    
      It is the claim of the defendant in error in this ■case:
    
      First. That the testimony in the case discloses that the plaintiff in error, William Martin, should be held responsible to the state of Ohio for the commission of the crime of murder in the second degree, as charged in the indictment.
    
      Second. The testimony of the state discloses that within gunshot of the point where William Martin stood when he discharged the fire-arm which killed Heber Farrar, there were three or more occupied dwelling houses, the property of persons other than the said William Martin, and under the charge of the court which recognized the law set forth in section 6962, Revised Statutes. There can be no escape from the crime of manslaughter of which the jury found the plaintiff in error guilty in this case.
    This statute protects human life from the indiscretion of one who recklessly discharges a fire-arm without just cause or excuse at a place which would necessarily jeopardize that human life. It would indeed be a drawn interpretation of this statute to contend for a moment that it would be a crime to discharge a fire-arm in an orchard within gunshot of an occupied dwelling house, and at the same time excuse the.culprit for the discharge of the same firearm in a wheat field the same distance away on the opposite side of the same dwelling house.
    This is in conformity with the constitution of the state of Ohio, article 1, section 1:
    It is apparent that “the property of another” modifies “dwelling house,” the object in the statute being to protect the L ome and the lives in the dwelling house, regardless of where the culprit may stand when the overt act is committed.
    
      It would indeed be a waste of legislative ammunition to say that the home shall be protected from gunshots fired from lawns, pleasure grounds and orchards belonging to some person other than the culprit, and permit the same act from the same man on the opposite side of the same dwelling house in a cornfield, or excuse the same act on the same lawn a like distance from the same dwelling house (the property óf another) committed by the owner of that lawn. Collins, Executor, v. Millen et al., 57 Ohio St., 296.
   Davis, J.

The contention of the plaintiff in error arises upon the following instruction to the jury: “If you find that the defendant killed Heber Farrar and that such killing was not intentional but was accidental, then you must determine whether such killing occurred as the result of an act prohibited by statute. * * * The statutes of this state prohibit the discharge of any fire-arm on any ground appurtenant to or within gunshot of any occupied dwelling house, the property of another. If the evidence shows beyond a reasonable doubt that at the time the defendant' fired the rifle, if he fired it, he stood on the ground appurtenant to, or within gunshot of an occupied dwelling house, other than the one in which he lived, and such occupied dwelling house was the property of another, and he knew those facts, then the firing of that rifle, under such circumstances was prohibited by statute, and unlawful; and if the shot so fired killed Heber Farrar, the defendant would be guilty of manslaughter.”

The plaintiff in error maintains that the instruction was prejudicial error because it was an instruction that even if the defendant stood upon ground appurtenant to his own dwelling, which was the fact, in this case, and accidentally or otherwise discharged a fire-arm thereby accidentally killing the-decedent, he would nevertheless be guilty of manslaughter because he caused the death of the deceased, while he, the defendant, was engaged in an unlawful act. The plaintiff in error insists that this, is a misinterpretation of section 6962, Revised Statutes, and that the circuit court erred in affirming the-judgment of the court of common pleas. The same-question is raised by the refusal of the trial judge to give to the jury certain instructions requested by the defendant.

Section 6962 reads as follows:

“Whoever discharges any fire-arms on any lawn,, park, pleasure ground, orchard, or any other ground directly appurtenant to, or within gunshot of, any-occupied dwelling house, the property of another, or any charitable institution, shall be fined not more-than twenty nor less than five dollars, or imprisoned not more than thirty days, or both.”

The prosecution contends that if the defendant discharged a gun within gunshot of a dwelling house, other than the one in which he lived, although at the time he may have stood on ground appurtenant to-the dwelling in which he lived, he was guilty of a violation of the statute and consequently guilty of manslaughter regardless of his intention. It can hardly be assumed without better evidence than appears in the language of this statute that the legislature intended to make it a crime for a man to discharge fire-arms within his own house for the protection of his fireside or outside of his house and upon his own premises in defense of his property, his family or his own person. On the contrary, we are of the opinion that the natural and appropriate com struction of this section and the true legislative intention are found by placing the phrase “the prop: erty of another” in relation to and as qualifying the words “lawn,” “park,” “pleasure ground,” “orchard or other ground” and “dwelling house.” That is to say, the correct and natural reading is, “Whoever discharges any fire-arms on any lawn or park, the property of another, or on any pleasure ground,. the property of another, or on any orchard or other ground, the property of another, directly appurtenant to or within gunshot of any occupied dwelling house, the property of another,” etc. It is an established rule of construction in this state that where the language of a revised statute is so far ambiguous as to call for construction, it is proper to refer to the statutes from which the revision was made. This rule would be strongly reinforced when, as in this case, the original act was not repealed by the act of revision and still remains unrepealed; because the two acts being in pari materia must be made to stand together, that is, to harmonize. The original act was not expressly repealed by the act of revision, nor by any later statute. It cannot be impliedly repealed unless it be irreconcilably in conflict with the revision. The section from which the revised section is for the most part taken is found in 71 O. L., 148. It is section 4 of “An act to protect certain birds and game, and to protect landowners and punish trespassing upon improved and enclosed land, and to repeal certain statutes therein named.” The title expresses the whole scope and purpose of the act. This section 4 is as follows:

“No person, when shooting on the land of another, shall discharge any fire-arms on any lawn, pleasure ground, orchard or other ground, which is directly appurtenant to or within gunshot of an occupied dwelling house. The penalty for violating this section shall be a fine of not less than five nor more than twenty dollars, or be imprisoned not more than thirty days, or both, at the discretion of the court, and pay the costs of prosecution.”

The clause in the original section, “when shooting on the land of another,” which qualifies every other part of the section, is not dropped out of the •revised section. It is preserved in the phrase, “the property of another;” and when the revised section is read as we construe it, it harmonizes completely with the original section, and not otherwise. In this view of section 6962 of the Bevised Statutes its scope differs from that of the original section only in that it extends the inhibition so as to protect charitable institutions also. The charge to the jury was there-' fore erroneous and the judgment of the circuit court and that of the court of common pleas are

' Reversed.

Spear, O. J., Shauck, Price, Crew and Summers, JJ., concur.  