Brewer v. State , 113 Tex. Crim. 522 ( 1930 )

DISSENTING OPINION. Appellant was convicted for violation of two city ordinances, first in the corporation court of the city of Wichita Falls, and thereafter upon appeal in the county court at law of Wichita county.

There were two counts in the complaint which charged different offenses. This is permitted in misdemeanor cases. Alexander v. State, 27 Texas Crim. App. 533; Tucker v. State, 65 Tex.Crim. Rep.; Williams v. State, 89 Tex. Crim. 560. The verdict and judgment were general, a punishment applicable under either count being assessed. This was also allowable. Hall v. State, 32 Tex.Crim. Rep.; Scales v. State, 46 Tex.Crim. Rep.; Day v. State, 62 Tex. Crim. 527; Gould v. State, 66 Tex.Crim. Rep.; Sanders v. State, 70 Tex.Crim. Rep.; Blackwell v. State,92 Tex. Crim. 473; Hodnett v. State, 92 Tex.Crim. Rep..

It is the duty of this court in any event to uphold the judgment of a trial court, upon a proposition such as is before us, if either count be sufficient under the law to support the verdict and judgment rendered. The first count herein charged appellant with a single act of intercourse with a woman named, this being made penal by the ordinance of the city of Wichita Falls under certain conditions relating to the age of the parties. If it should be conceded here that said count can not be upheld because of the fact that the ordinance mentioned is deemed in conflict with our State laws defining and punishing adultery and fornication, — a proposition with which the writer is not in accord, being of opinion that a single act of intercourse between a man and a woman not married to each other, and not living together, is not an indictable offense under any State law known to him, and that therefore an ordinance making same a penal offense is not in conflict with any law of this State, — still it can not be contended that the ordinance under which the other count of the complaint was drawn, and of which offense appellant was also found guilty, viz: that of entering a building in said city for the purpose of engaging in an act of adultery with a woman named, is in conflict with any law of this State; hence the verdict and judgment in the case could be applied to this count and upheld. A similar ordinance was upheld In re Johnson, 73 Cal. 142.

The only limitation or inhibition upon or against the power of the city of Wichita Falls to enact such ordinances as its governing body or its people may deem a proper exercise of the police power is found in the Home Rule Amendment to our Constitution which prohibits the enactment of any ordinance by any city operating thereunder which contains provisions inconsistent with any general law of this State; and the permission granted in Art. 962 of our Revised Civil Statutes of 1925 to all incorporated cities and towns in this State to "Ordain and establish such acts, laws, regulations and ordinances, not inconsistent with the Constitution and laws of this State, as shall be needful for the government, interest, welfare and good order of said body politic." In 1 Abbott Mun. Corp., p. 244, the author says: "The good morals of the community should be an especial care of the public authorities, and all regulations and laws passed by the proper authorities, looking to this end, come within a valid exercise of the police power." It is needless for the writer to remark that all civilized nations have always legislated against immoral intercourse. By a single forbidden act the moral law against such crimes, is effectually broken. If we may legally punish him who aids, advises or encourages another to commit crime, or him who furnishes arms, means, etc., no reason is perceived why we may not punish him who enters a building purposing to engage in the act forbidden by all our laws. My Brethren are of opinion that entering a house with a certain intention in mind, "Is not such description of an offense as meets the law's demands." If it is proper to punish him who in certain ways enters a house with intent to rape or steal, as is the case under all our burglary statutes, then there can be no doubt of the power to punish him who enters such house with intent to have wrongful carnal knowledge of a woman. I have the utmost respect for the views of my Brothers, but am not able to agree that same are correct in regard to either ordinance herein. I respectfully record my dissent.