In Re Mitchell

BUCKLES, J.

The petitioner was held, to answer on the following charge: “Did then and there willfully, unlawfully, feloniously and maliciously deposit and explode at, in, under and near a place where human beings usually assemble, frequent, pass and repass, to wit: in the levels, stopes and chutes of the Angels Quartz mine owned by the Angels Quartz Mining Company, a corporation, certain dynamite, hércules powder and explosives, with the intent to injure the said mine and the said structures therein and to injure and intimidate and terrify human beings, and by means of which human beings were endangered. ’ ’

The charge is made under section 601 of the Penal Code, as amended in 1905, or, it is brought under section 8 of the act of March 12, 1887, (Stats. 1887, p. 110), which sections are identical one with the other, and read as follows: “Any person who maliciously deposits or explodes, or who attempts to explode, at, in, or under, or near any building, vessel, boat, railroad, tramroad, or cable-road or any train or ear, or any depot, stable, carhouse, theater, sehoolhouse, church, dwelling-house or other place where human beings usually inhabit, assemble, frequent, or pass and repass, any dynamite, nitroglycerin, vigcrite, giant or hércules powder, gunpowder, or other chemical compound or explosive, with the intent to injure or destroy such building, vessel, boat, or other structure, or with the intent to injure, intimidate, or terrify any human being, or by means of which any human being is injured or endangered, is guilty of a felony, and punishable by; imprisonment in the state prison not less than one year.”

[398]

It is claimed by petitioner that the charge must be brought under section 8 of the act of March 12, 1887, because that act had repealed section 601 of the Penal Code, and, it having been repealed, could not be amended by the attempt made in 1905. This contention is doubtless correct if the repeal was effected as claimed. (See Pol. Code, sec. 330.) If the section was really repealed in 1887, it has not been re-enacted, and the prosecution is under section 8 of the act of 1887. Even though there was no repeal, and the amendment of 1905 is proper, the importance to petitioner, according to his standpoint, to have the prosecution under the act rather than under the code, is readily discernible. He contends that the common-law rule that “penal statutes must be construed strictly” is in force in this state as to all penal enactments which are not a part of the Penal Code, while a different rule prevails as to the provisions of the Penal Code, to wit: “All its provisions are to be construed according to the fair import of their terms with a view to effect its object and to promote justice.” (Pen. Code, sec. 4.) I know of no reason why a penal statute not a part of the code should be construed by any other or different rule than that prescribed for construing the provisions of the code. The rule laid down in section 4 of the Penal Code is a common-sense one, a rule which must-be acknowledged as just and proper and which does not operate to improperly deprive any person of his liberty. At the time the code was adopted, this rule was intended to apply to the entire body of criminal law in this state, and it was manifestly the intention that the old common-law rule of such strictness (applied sometimes without reason or sense) should be abrogated.