Davis v. State , 93 Tex. Crim. 192 ( 1922 )

In our former opinion we held the Act of the Thirty-seventh Legislature, 1st and 2nd C.S. Chapter 61, p. 233, Sec. 2d, providing that "No person over twenty-five years of age convicted under any of the provisions of this Act shall have the benefit of the Suspended Sentence Law." was not discriminatory.

On motion for rehearing our attention is called to a further contention urged by appellant, viz: that the Act of the Legislature above referred to is in effect an effort to amend the Suspended Sentence Law passed by the Legislature in 1913, and now incorporated in our Code of Criminal Procedure as Articles 865b to 865i inclusive, and is unconstitutional and ineffective as violative of Section 36, Article 3 of our Constitution which reads:

"No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length."

If Section 2d, quoted above, was an amendment or attempted amendment of Article 865b then appellant's contention should be sustained, otherwise not.

It must be borne in mind that when the Legislature in 1913 passed the Suspended Sentence Law it was dealing with a matter theretofore unknown to our Statute, and it was necessary to specify in its enactment to what felonies then known to our law the suspended sentence should or should not apply. Under the doctrine of "Express Mention and Implied Exclusion" (36 Cyc. p. 1122, 25 Ruling Case Law, Section 24, p. 778) it may be conceded, we think, that the law would also apply to felonies thereafter created by the Legislature in the absence of express restriction, but if by a clear expression of the legislative will a contrary purpose was made manifest it would not apply. "The prohibition against revision or amendment by reference to title and other similar constitutional restrictions have never, in construction, been given a rigid effect, but have been held applicable only to such statutes as come within their terms, when construed according to the spirit of such restrictions, and in the light of the evils to be suppressed." (36 Cyc. p. 1061). An examination of Sections 119, 120, 156, 160, Volume 25 Ruling Case Law, will reveal that it is not every reference to a former law in subsequent legislation that operates as an amendment. This was recognized by Chief Justice Gaines in Quinlan v. H. T.C. Ry. Co., 89 Tex. 371 [89 Tex. 371], 34 S.W. Rep., 738. In the recent case of Ex parte Jonischkies, 244 S.W. Rep., 997, discussing Article 3, Section 36 of our Constitution, Presiding Judge Morrow quotes at length and with approval from Quinlan v. H. T.C. Ry. Co. (supra), and it is not thought necessary to again incorporate it here; but reference is made to both cases, and to the many authorities collated. We quote Section 120, Ruling Case Law, Volume 25: — "Statutes known as reference statutes,' that is, statutes which refer to, and by reference adopt, wholly or partially, pre-existing statutes, are not strictly amendatory or revisory in character, and are not obnoxious to the constitutional provision which forbids a law to be revised, amended, or the provisions thereof to be extended or conferred, by reference to its title only.'

This rule occurs to us to be clearly pertinent to the question under consideration. When the suspended sentence law was enacted violations of the then existing "liquor laws" were not felonies. The Thirty-sixth Legislature (2d C.S.) Chapter 78, p. 228, created new felonies embracing the act charged against appellant, to-wit: the sale of intoxicating liquor. In the absence of an "express restriction to the contrary" the already existing "suspended sentence law" became operative upon the new felonies created. When Chapter 78 of the 2d C.S. of the Thirty-sixth Legislature was amended by Chapter 61, p. 233 of the Thirty-seventh Legislature (1st and 2d C.S.) by express language in Section 2d of such amendment it negatived the purpose and intent of the Legislature to adopt in its entirety the suspended sentence law as it related to the felonies then under consideration, but only partially adopted it, insofar as it should be available only to those under twenty-five years of age who might be convicted of any felonies defined in such amended act. We are of opinion this could properly be done without in any way infringing upon Section 36, Article 3 of the Constitution. The enactment in question does not purport to be an amendment of the suspended sentence law, and we do not think can properly be brought within the principle of an amendment thereof by implication. If appellant's contention should be upheld it would result that every new felony created by the Legislature to which in its judgment the suspended sentence should not apply, either in whole or in part, would require a formal amendment and re-enactment of that law, when none of the evils intended to be avoided by an observance of Section 36, Article 3 of the Constitution would appear to make such action necessary.

Another matter presented in the motion for rehearing will be referred to. The equipment for the manufacture of intoxicating liquor mentioned in the first paragraph of our original opinion was found by the officers without a search warrant. Anticipating that this evidence might be used by the State appellant had prepared a motion intending to file the same requesting action by the court directing the State that such testimony discovered by the officers without a search warrant could not be used against appellant. Upon a statement made by the county attorney that he did not expect to use, and would not use, such evidence against appellant upon the trial of the instant case the motion was not filed. The exigencies of the case made is necessary for the county attorney to use the testimony in question and appellant filed a motion asking permission to withdraw his announcement of "not ready" and to permit him to file the motion as in limine. Appellant now contends before this court that although we might believe the motion would not have been good if presented, that he was deprived of a valuable right in being denied the privilege of filing same and that, therefore, this case should be reversed for that reason. Since the original opinion in the instant case was delivered the whole question of search and seizure has been exhaustively considered by this court in the case of Welchek v. State, (No. 7136, delivered November 22, 1922). That case specifically holds that the motion if made should not have been sustained by the court, and we can not bring ourselves in accord with the contention of appellant that we should reverse this case in order to permit the filing of the motion in question. If appellant believes a Federal question would have been presented by so filing the motion then we are of opinion that under the case of Gouled v. U.S., Vol. 10 Advance Opinions, U.S. Supreme Court, 1920-1, page 311, the same point would be available to him as presented in his bill of exceptions in the absence of the motion. In the Gouled case certain evidence was tendered by the Government of which appellant had no notice prior to the announcement of "ready" in the case, and therefore, no motion in limine was filed by him but objection was urged at the time the testimony was offered. The Supreme Court of the United States held that under such circumstances it was not necessary to have filed the motion in limine. This would seem to bring appellant's contention clearly within the rule announced in that case. If it should be thought that a Federal question is involved we see no reason why the Federal Court would not entertain an application for a writ of error in the instant case. Believing that no Federal question is raised, but that it is simply a rule of evidence which might be applied by the United States Court if the prosecution was pending therein, and that the Welchek case (supra) definitely settles the matter against appellant's contention, we can see no reason for setting aside our original opinion. The other matters presented in the motion for rehearing were fully considered in our former opinion and we believe were correctly settled. The motion for rehearing will be overruled.

Overruled.