Malata v. State

33 Ohio C.C. Dec. 353, 21 Ohio C.C. (n.s.) 297, 1906 Ohio Misc. LEXIS 334

• Court: Cuyahoga Circuit Court
• Decided: May 15, 1906
• Status: Published

Opinion

HENRY, J.

This proceeding in error was brought to reverse the conviction' and sentence of plaintiff in error for unlawfully and intentionally injuring, molesting and destroying wires of the Cleveland Telephone Co., in violation of Sec. 3461-3 R. S.

This section is a part of the magnetic telegraph act (45 O. L. 34) which the state claims is made applicable to telephone lines by See. 3471 R. S. (Sec. 9191 G-. C.). The latter section reads as follows

‘ ‘ The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions as are herein prescribed, for magnetic telegraph companies.”

It will be observed that this section does not in terms provide that the offenses defined in this chapter with respect to telegraph property shall be construed to include like offenses with respect to telephone property. And we think the case is within the rule of State v. Meyers, 56 Ohio St. 340 [47 N. E. 138] that “A statute defining a crime or offense can not 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. ’ ’

This would clearly suffice to dispose of the ease before us, were it not for a dictum in Cincinnati Inc. Plane Ry. v. City and Sub. Tel. Assn., 48 Ohio St. 390, 423 [27 N. E. 890; 12 L. R. A. 534; 29 Am. St. 559], that “without this section (3471) making the provisions of the chapter relating to telegraph companies expressly applicable to telephone companies, we think that the term ‘telegraph’ as a mode of transmitting messages of communications, is sufficiently comprehensive to embrace the telephone,”

Granting that this is the law with respect to the civil aspects of the legislation referred to, we can not overlook the principle that a criminal statute is not thus liberally construed, nor the fact that when Sec. 3461-4 E. S. (Sec. 12511 G. C.), was passed the telephone was wholly unknown and undreamed of. It is, indeed, a method of long distance communication analogous to the telegraph. But it is not merely a development of the telegraph. It is a novel and revolutionary invention. And statutory crimes with respect to telegraph property can not, by mere construction, be so extended as to apply to telephone property.

The indictment does not contain allegations sufficient to bring it within the purview of See. 6863 E. S. (Sec. 12477 G. C.), penalizing the malicious destruction of property in general.

It follows that the judgment below must be reversed for error in overruling the demurrer to the indictment upon the ground that it alleges no punishable offense under the laws of Ohio.

The further assignments of error are in our opinion unfounded. The use of the word “misdemeanor” in See. 3461-4 (12511), to characterize a crime punishable by imprisonment in the penitentiary is not in conformity with See. 6795 E. S. (Sec. 12372 G. C.), distinguishing and defining felonies and misdemeanors. But this circumstance does not, we think, violate the right of the party accused to be informed of the nature and cause of the accusation against him as provided by Art. 1, Sec. 10, of the constitution of Ohio. It is true that the incidents of procedure are not altogether the same for misdemeanors as for felonies. But Sec. 3461-4 was enacted before that distinction was defined by statute; and, except perhaps as to the mere word itself, it is not repealed thereby, nor is its meaning rendered fatally uncertain. Though called a misdemeanor when enacted, the punishment provided for the offense is such as to bring it now within the definition of a felony.

The remaining claims of plaintiff in error we do not deem it necessary to refute.

The judgment below is reversed and the cause remanded with instructions to sustain the demurrer to the indictment.

Marvin and Winch, JJ., concur.