State v. Horan , 11 Tex. 144 ( 1853 )

Lipscomb, J.

The only question is, Was the 9th Section of the Act of 1840, to suppress gaming, repealed or suspended by the Act of March 20th, 1848, concerning crimes and punishments. The last named Act repeals no Section of the Act of 1840, by any special reference to it, and, in the last Section, repeals all laws and parts of laws conflicting with it. The 9th Section is not in conflict; and the Attorney General insists, therefore, that it was intended that it should remain in force, and, if his position cannot be supported, the indictment was for an ofl'ence not known to the law, as the last Act does not make it an offence to permit a banking game to be exhibited.

The 9th Section of the Act of 1840 is as follows, i. e., “ That “ if any person shall permit any banking game, such as are “ inhibited by the 3d Section of this Act, to be kept in his or “ her house, or shall rent a room for this purpose, he or she “ shall suffer the same punishment as those convicted of keep- “ ing such bank.” The 3d Section, referred to, prescribes a penalty or a fine, of one thousand dollars ; and on failure to pay the fine, imprisonment, without bail, for six months, for keeping any such banks; and it enumerates among the inhibited games, Faro bank.

That this 3d Section is entirely superceded by the 69th Section of the last Act, there can be no doubt, as much so as if it was stricken from the statute book. Such being its condition, it is insisted by the counsel for the appellee, that it can afford no support to the 9th Section, which, resting upon it, must fall with it; because, without such support, the 9th Section prescribes no punishment, and is entirely inoperative. This seems to be a fair logical deduction. This conclusion, to my mind, acquires additional strength, from an examination of the Act of 1848, which shows that the 9th Section was intended to be superseded, or that its re-enactment was omitted by an accidental oversight. In the Act of 1848, every provision of of the Act of 1840 is enacted, with the exception of the 9th Section ; and that the Legislature had its attention called to the subject of permitting games to be played, is manifest, from their enacting the provisions of the 8th Section, which made it an offence to permit card playing, and then not re-enacting the 9th, leaves the presumption that it was not designed to be included. If they had intended these enactments to remain in force, there was no sort of reason why they should include one, and pass the other in silence. If it had been intended that the offence created by the 9th Section, should remain in force, why not re-enact it, as they had done the 8th Section. Again, the structure of the Act of 1848, shows an intention to legislate on the whole subject of penal offences, and to embrace all in one Act. It has classified offences and crimes, designating the particular head to which each belonged. 1st. offences against the State, 2nd. against the life of a person, 3rd. against property, 4th. against public justice, 5th. against the public peace, 6th. against decency, chastity and morality, 7th. and last, against public policy ; and under this last head, are found all their enactments against gaming and keeping gaming tables and banks, manifesting a design to create an entire system of offences and penalties, modified, as to their body seemed just and proper, easy to be found in the statute book, and easily comprehended, without reference to any previous legislative enactments.

These considerations have brought my mind to the conclusion, that the Act of 1848 was intended and does entirely supersede the Act of 1840; and if the 9th Section was not superseded, it became inoperative by the repeal of the 3d Section. If this was not the intention of the Legislature, that body is now in session, and can supply the defects of the Act of 1848. I believe there is no error in the judgment of the District Court, and that the same ought to be affirmed ; and this is the judgment of the Court.

Judgment affirmed.