McMAHON, J.
It is a little doubtful to my mind whether the question as to whether the bag such as is described here would come under the definition of the statute as being an implement is not a question of fact for a jury to determine.
On the other hand, it is a question of law in this aspect: What was the intent of the legislature in enacting this particular section? Now, this section creates a new statutory crime, and, of course, must be construed strictly as against the People, and literally as it affects the individual.
The caption of the section is "Possessing burglar's instruments," etc., and the section reads:
"A person who makes or mends, or causes to be made or mended, or has in his possession in the day or night time, any engine, machine, tool, false key, pick-lock, bit, nippers or implements adapted, designed or commonly used for the commission of burglary," etc.
In the ordinary acceptation of the words of the English language, I think no one would naturally and in ordinary conversation describe a muslin bag as an implement or a tool or an engine or an instrument.
The question of law, however, is: Did the legislature, in passing that enactment, mean to include under the somewhat generic word "implement" a bag such as is described in this indictment?
In another section of the Penal Code, where there is a description of the manner and method by which an offense may be committed (§ 218, par. 4), the following language is used:
"Willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm." If the legislature, in the section under consideration, had employed those words, "" or thing," it would most surely cover the offense charged here, and this bag would come under that description; and from the fact that the legislature in one section of the same enactment, the Penal Code, uses a generic word that covers every possible article or contrivance, and in another uses a word of much more limited significance, it is fair to infer that the distinction made was intentional.
In this aspect of the case (while in the other I would prefer to submit to the jury as one of fact the question as to whether this bag is an implement adapted, designed or commonly used for the commission of larceny or other crime) I will hold that it does not appear from the context that the legislature had in view that particular thing or contrivance in making the enactment under which the indictment is laid; and I, therefore, sustain the demurrer.
Demurrer sustained.