The opinion
CATES, Presiding Judge
(concurring specially):
To me, in ascertaining the meaning of “any peace officer or other law enforcement officer,” we should look first to the statute which created this special crime. If not there enlightened we should go to a dictionary or other source of what is commonly intended by the man on the street. In this search, I would not use other statutes unless it is clear that the Legislature is not therein using its plenary power of defining to create a new or expanded meaning for a word.
In Towne v. Eisner, 245 U.S. 418 , 38 S.Ct. 158 , 62 L.Ed. 372 , it was claimed that “income” in the Sixteenth Amendment and in the Income Tax Act were one and the same. Mr. Justice Holmes did not accept this as a universal verity, saying:
“ * * * A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly *285 in color and content according to the circumstances and the time in which it is used. * *
Again, in Lamar v. United States, 240 U.S. 60 , 36 S.Ct. 255 , 60 L.Ed. 526 , we find:
“ * * * The question is in what sense the word ‘officer’ is used in the Criminal Code * * * The same words may have different meanings in different parts of the same act, and of course words may be used in a statute in a different sense from that in which they are used in the Constitution.”
The crime here in question is denounced in § 3 of Act No. 746, September 8, 1967. Said Act [also set out in the 1973 Pocket Part Supplement of Michie’s unofficial 1958 Code as T. 14, §§ 374(18)-(20)] contains no definition of the expression “peace officer or other law enforcement officer.”
I cannot agree that Act No. 1981 of September 20, 1971, as amended by Act No, 1115 of September 17, 1973 [Michie’s unofficial Code, supra, T. 55, § 373 (103)] is relevant — mainly because the Legislature (1) used the omnium gatherum “includes” 1 and (2) did not refer to employees of the Board of Corrections. The Board of Corrections not being a corporate body, I think the reference in that Act is to board members alone.
The expression “peace officer” used in Act No. 208 of August 16, 1966, as amended, is overbroad in that it “includes” all employees of the department of corrections and institutions. This could embrace not only prison guards but also stenographers, file clerks, auditors, computer programmers and other office workers, as well as the custodians of the convicts.
The latter category I do consider to be within § 3 of Act 746, supra, of instant concern. However, I reach that conclusion by slightly different reasoning from that used by my Brother Harris. Instead, I would rely on the language in State v. Grant, 102 N.J.Super. 164 , 245 A.2d 528 , wherein the court says:
“Defendant first urges that an Essex County Penitentiary correction officer is not a ‘law enforcement officer’ within the intendment of N.J.S. 2A:9-4, N.J.S.A. The functions and responsibilities of correction officers performing the duties described above, are such that we are unable to agree with defendant’s contention. Whether those performing such duties bear the title of jail guard, warden or correction officer, overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators. Moreover, they have the further duty of detecting and preventing violations of law by prisoners, e. g., assaults on other prisoners, escapes, etc., and in that sense are literally law enforcement officers. * * * We are satisfied that the Legislature intended to encompass within the scope of the statute those persons whose duty it is to supervise the administration of criminal punishment and to maintain security within and without the confines of the State’s penal institutions. We find no basic in logic or reason for limiting the meaning of the term “law enforcement officer” to persons empowered by law to investigate, arrest and prosecute violators of the law, as urged by defendant. * * * ”
I have only written to such length because I think it’s elemental that penal statutes must be strictly construed. If the instant statute applied only to “peace officers” I might have voted to reverse. However, I do think that prison guards are “law enforcement officers,” particularly since it is their duty to force the convicts to obey and endure the sentence of the law.
*286 The Legislature undertook to punish for this species of aggravated assault. I do not consider that the classification is unreasonable. These wardens, for low pay and grudging recognition, risk life and limb certainly as often as constables, sheriffs and policemen.
. “Include” is ordinarily a word not of limitation, but of enlargement. Sims v. Moore, 288 Ala. 630 , 264 So.2d 484 . This is also a principle of statutory construction. North Carolina Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109 , 143 S.E.2d 319 .