Hurley v. Eidson

• Decision Date: 08 June 1953
• Docket Number: No. 43716,43716
• Citation: 258 S.W.2d 607
• Parties: HURLEY v. EIDSON.
• Court: Missouri Supreme Court

Page 607

258 S.W.2d 607

HURLEY v. EIDSON.

No. 43716.

Supreme Court of Missouri, en Banc.

June 8, 1953.

Clayton W. Allen, Rockport, for petitioner.

John M. Dalton, Atty. Gen., Samuel M. Watson, Asst. Atty. Gen., for respondent.

TIPTON, Judge.

Habeas Corpus: Petitioner was convicted in the circuit court of Atchison County, Missouri, of feloniously operating a motor vehicle while in an intoxicated condition, and his punishment fixed at three years' imprisonment in the state penitentiary. This court affirmed that judgment and our opinion is reported in 251 S.W.2d 617.

Petitioner contends that he is illegally restrained of his liberty because under Section 564.460 RSMo 1949, V.A.M.S., he must have been convicted not only of operating a motor vehicle while in an intoxicated condition, Section 564.440 RSMo 1949, V.A.M.S., but also must have been convicted of leaving the scene of an accident, Section 564.450 RSMo 1949, V.A.M.S.

Section 564.460, supra, reads:

'Any person who violates the provisions of sections 564.440 and 564.450 shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the penitentiary for a term not exceeding five years or by confinement in the county jail for a term not exceeding one year, or by a fine not exceeding one hundred dollars, or by both such fine and imprisonment.'

Section 564.440, supra, reads:

'No person shall operate a motor vehicle while in an intoxicated condition, or when under the influence of drugs.'

Section 564.450, supra, reads:

'No person operating or driving a vehicle on the highway knowing that an injury has been caused to a person or damage has been caused to property, due to the culpability of said operator or driver, or to accident, shall leave the place of said injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and chauffeur's or registered operator's number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer.'

These sections were originally enacted at the extra session of 1921 of the legislature and are found at pages 103 and 105 of Laws of Missouri 1921, Extra Session. Section 564.440, supra, was sub-section (g) and section 564.450 was sub-section (f) of section 27 of the Laws of 1921. These sub-sections have been carried forward in the subsequent revisions in the identical language as originally enacted.

Section 564.460 which prescribed the penalty for violation of the above named sections was originally subsection (c) of section 29 of the Laws of 1921, Extra Session, page 105. It reads:

'Any person who violates * * * paragraphs (f) or (g) of section 27 shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the penitentiary for a term not exceeding five years or by confinement in the county jail for a term not exceeding one year, or by a fine not exceeding one hundred dollars ($100.00) or by both such fine and imprisonment.'

The above quoted section was carried through the 1939 revision without change. it is to be noted that that section is in the disjunctive and provides that 'Any person who violates * * * paragraphs (f) [leaving the scene of a motor vehicle accident] or (g) [driving in an intoxicated condition] of section 27 shall be deemed guilty of a felony * * *,' while section 564.460 provides that 'Any person who violates the provisions of sections 564.440 [driving in an intoxicated condition] and 564.450 [leaving the scene of a motor vehicle accident] shall be deemed guilty of a felony * * *.' This section is in the conjunctive. Literally interpreted, it requires a person to violate both sections 564.440 and 564.450 before he can be punished. In other words, before a person can be punished for a felony, he must be guilty of leaving the scene of an accident and also be guilty of driving a motor vehicle in an intoxicated condition, though prior to the enactment of section 564.460 a person was guilty of a felony if he drove a motorcar in an intoxicated condition. He was also guilty of a felony if he left the scene of an accident without complying with section 564.450.

Did the legislature intend that a person must violate both sections 564.440 and 564.450 at the same time when it enacted section 564.460?

'The word 'or' in statutes or documents is frequently interpreted to mean 'and,' and this interpretation is given to it whenever required to carry out the plain purpose of the act or contract, and when to adopt the literal meaning would defeat the purpose or lead to an absurd result. 2 Sutherland, Stat.Const. Sec. 397; Black, Interp.Laws, p. 228. Some courts have gone so far as to say the words 'and' and 'or' are interchangeable as the sense may require. (People [ex rel. Municipal Gas Co.] v. Rice, 138 N.Y. 151, 33 N.E. 846), an extreme rule, and perhaps not supported by the weight of authority. But it is certain 'or' is often interpreted to mean 'and' and vice versa, if the context shows that meaning was intended, or when, as said, an absurd consequence, or frustration of the object of the enactment, would otherwise follow.' State ex rel. Stinger v. Krueger, 280 Mo. 293, 217 S.W. 310, loc. cit. 315.

In the case of People v. Sweetser, 1 Dak. 308, 46 N.W. 452, 453, the court was construing a law regulating the sale of intoxicating liquors. Laws Dak. 1872-73, c. 25, sec. 4. The first section prohibited the sale, without a license, of intoxicating liquor to be drunk upon the premises; the second section made it unlawful to sell to minors, etc. The statute further provided that 'For every violation of the provisions of the first and second sections of this act every person so offending shall forfeit and pay a fine * * *.' The defendants were convicted of selling liquor without a license and on appeal contended the punishment was for a violation of the first and second sections--that is, both--and that they had been wrongly sentenced for violating only the first section.

In ruling the case, the court said:

'Again, it is contended that defendants cannot be punished unless guilty of a violation of both sections 1 and 2, a violation of the provisions of one of these sections alone not being sufficient, as section 4 provides a punishment for any one violating the provisions of the first and second sections. This objection savors entirely too much of captious hypercriticism, and I shall dispose of it with a very few words. Can it be supposed for a moment that the legislature intended to permit parties to sell, to be drank on the premises, without license or bond, provided they did not sell to the persons mentioned in section 2? Again, section 2 is an absolute prohibition of the sale of intoxicating liquors, in any quantity and for any purpose, to the persons therein named, subject to an exception in case of minors. Now can it be that the legislature intended that this section might be disregarded, and its provisions violated with perfect impunity, and with complete immunity from the possibility of punishment, provided the offender did not at the same time sell to be drank on the premises? I think the clear intention--and such is certainly the most reasonable, in fact the only reasonable, construction,--was to provide for the punishment of the violation of either section. Any other construction would render the statute a dead letter. Even a penal law should not be construed so strictly as to defeat the obvious intention of the legislature. [American] Fur Co. v. U. S., 2 Pet. [U.S.] 358 . 'And' and 'or' are convertible as the sense of the statute may require. Townsend v. Read, 10 C.B. (N.S.) 308; Boyles v. McMurphy, 55 Ill 236. And this is the rule even in a criminal statute. State v. Myers, 10 Iowa, 448; Miller v. State, 3 Ohio St. 476.' Loc. cit. 454 of 46 N.W. The court held that the word 'and' as used in the penal section meant 'or' and affirmed the judgment of the trial...