rehearing">

The folloAving opinion on motion for rehearing was filed May 24, 1907. Rchcariny denied:

Sedgwick, C. J.

The statute construed in this case provides that “it shall be unlawful for any person to build a barbed Avire fence across or in any plain traveled road or track in common use.” Comp. St., ch. 78, sec. 108. This clause' is plainly susceptible of at least two distinct meanings, and which of these meanings shall he given to the clause depends upon the manner of reading it. T)o the Avords *638“in common use” limit the word “track” only, or do they limit the words “road or track” ? By the intonation of the Amice of the reader it may be made to mean one thing or another. In the brief upon the motion for rehearing it is contended that it should be construed as though it read “across or in any plain traveled road, or across or in any track dn common use.” In the meaning given the clause in our former opinion it is considered that the Avord “or,” AAdiich occurs twice in the clause, in each instance relates only to the two words between which it stands, and if the clause is read with a short pause after the word traveled, and again after the word track, that is if the three Avords “road or track” are pronounced more rapidly than the other words of the clause, such an intonation in reading it AA'ould convey to the hearer the meaning given it in the opinion; so that the contention virtually is that the guilt or innocence of the accused would depend upon the emphasis or intonation used in reading the clause, and the correct emphasis or intonation is to be determined from ihe probable intention of the legislature. Of course, this is not a safe rule for the construction of criminal statutes. If the language used by the legislature is as readily capable of one construction as the other, it should not be so construed as to make that criminal which would otherwise be innocent. It is unlawful to build a barbed Avire fence across either a “road or track” if that “road or track” is plain traveled and in common use, without putting up guards, etc.

The motion for rehearing is

Overruled.

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