McKean

Defendant was charged with offering his services to assist in the accomplishment of a miscarriage. It was the theory of the prosecution that the charge as laid stated all the essential elements of the offense denounced in the concluding clause of section 317 of the Penal Code. Whether the information does charge every essential ingredient of that offense is the principal question presented by this appeal. Defendant, who was found guilty as charged, appeals from the judgment of conviction and from an order denying his motion for a new trial.

Section 317 reads: “Every person who wilfully writes, composes or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by cmy notice, advertisement, or otherwise, to assist in the accomplishment of any such purpose, is guilty of a felony.” (Italics ours.)

The charging part of the information is as follows: “The said defendant on or about - the 24th day of December, 1924, at the said County of Riverside, State of California, and before the filing of this information, did wilfully, unlawfully and feloniously offer…

I dissent. No rule is better established as an aid to statutory interpretation and construction than that known as ejusdem generis. On the other hand, its limita tions and exceptions are equally well recognized. To my mind, the instant case as charged and proved is unquestionably within the inhibition of section 317 of the Penal Code. The defendant personally and verbally solicited the opportunity to produce a miscarriage, and this the statute makes a criminal offense by the use of the words “or otherwise,” following the provisions “who offers his services by any notice, advertisement.”

A number of considerations, singly and each one supporting and corroborating the others, compel this conclusion. Because it is necessary for me to dissent from the opinion of my associates, I shall set forth these reasons at greater length than would otherwise be expedient. It will be observed that the sole reason for ruling that the defendant herein should not be held guilty is the asserted application of the ejusdem generis rule to the words “or otherwise,” as used in this section of the Penal Code. Before accepting as final and as entitled to unquestioned obedience the authority of this rule,…