Stevens v. State

Appellant was prosecuted under an indictment charging that he did directly and as the agent and employe of another, keep and exhibit for the purpose of gaming, a gaming table and bank.

A motion was made to quash the indictment and in arrest of judgment. It is earnestly insisted that the indictment is duplicitous and repugnant in that it sought to charge two offenses in one count. If the indictment charged or sought to charge two offenses, the contention would be well taken, but it seeks to charge only one offense, — the keeping and exhibiting a gaming table and bank. It is true that it charged that he did so directly, and as agent and employe of another, yet that is merely the commission of the offense in either one or the other of the ways denounced by the Code, and under all of our decisions it has been held that where there are several ways in the statute by which an offense may be committed, and they are embraced in the same general definition, and are punishable in the same manner and to the same extent, they are not distinct offenses, and may be charged conjunctively in the same count in the indictment. Morris v. State, 57 Tex.Crim. Rep.; Moore v. State, 37 Tex.Crim. Rep.; Medina v. State, 49 S.W. Rep., 380; Reum v. State, 49 Tex.Crim. Rep.; Holman v. State, 90 S.W. Rep., 174; Willis v. State, 34 Tex.Crim. Rep.; Goodwin v. State, this day decided, and cases cited. The opinions in these cases pass on every ground raised by appellant, and it is shown that in an unbroken line of decisions this court has held that an indictment clothed in the language that this one is, is neither duplicitous nor repugnant.

The next contention of appellant is that as article 551 of the Penal Code makes it a misdemeanor to keep and exhibit a gaming table or bank, punishable by fine and imprisonment in the county jail, and article 558 makes it a felony to keep and exhibit a gaming table or bank, punishable by imprisonment in the penitentiary, we have no statute punishing a man for keeping and exhibiting a gaming table and bank, — that the Revised Code naming two penalties for the same act renders both articles void. In the case of Robertson v. State, 70 Tex.Crim. Rep., we held adversely to appellant's contention, and it seems useless to again review the authorities. However, appellant cites one case, Central Georgia Railroad v. State, 54 Ga. 401, and contends that it sustains his contention, but we do not think so. In that case it was contended that an Act of the Legislature, authorizing the Railroad Commission of that State to require railroads to erect depots, was invalid on certain grounds, among them, the insufficiency of the caption. The court held it was not necessary to discuss that question, as, since the enactment of the law, the laws of Georgia had been codified, and the report of the Commissioners, by an Act of the Legislature, made the law of that State, and even though the Act was void when originally enacted, that by its re-enactment as a part of the Code it become the law, as none of the objections urged were applicable to the law when passed the second time as a part of the Code. That this was a re-enactment of the law, and under such circumstances was a valid law. To this the court accedes, and it is in line with all our decisions, and the opinion in the Robertson case is not in conflict therewith. That codifiers have no authority to add to, amend, omit nor write new statutes, none as we understand, contend; it is when the Legislature enacts their work into law which gives to their work vitality, and the force of law, and when so enacted by the Legislature, their work becomes law is not gainsaid by this court, nor any respectable authority so far as we have been able to ascertain. But the fact that a given provision is enacted as a part of revision, gives it no more force and effect than if enacted as a separate and distinct bill, and such provisions are subject to and should be construed as all other laws or provisions passed by the Legislature. That article 558, when it was enacted by the Legislature in 1907 (as art. 388a), necessarily repealed article 551 (old number 382, which had been passed in 1887), we do not think anyone would question. So prior to the adoption of the report of the codifiers in 1911, there are none, we think, who will contend but what the felony statute was the law of this State from its enactment in 1907 until at least the adoption of the codification in 1911. But as both articles were brought forward in the codification and re-enacted, it is contended that thereby the Act of 1887, article 551, was revitalized, and being in conflict with the Act of 1907, article 558, which was also re-enacted, the punishment thereby being rendered uncertain, both must fail, and it is contended we have no authority to go behind the Act adopting the 1911 codification to gather the intent and purpose of the Legislature, nor to aid us in arriving at the proper construction to be given these articles of the Code. Under all the decisions of this court appellant's contention is unsound. (Braun v. State,40 Tex. Crim. 236; Runnels v. State, 45 Tex.Crim. Rep.; Ex parte Muckenfuss, 52 Tex.Crim. Rep.; Chiles v. State, 1 Texas Crim. App., 27.) In those cases it is seen that this court has always held that when a revision has been adopted, and the meaning and intent is not made plain, this court may resort to the original Act and be thus enabled to give correctly a proper construction to the provisions of the Revised Code, and in so doing we find that article 551 was repealed in 1907 when article 558 was adopted, and Mr. Sutherland on Statutory Construction says in section 161: "Where two statutes in part materia, originally enacted at different periods of time, are subsequently incorporated in a revision and re-enacted in substantially the same language, with the design to accomplish the purpose they were originally intended to produce, the times when they first took effect will be ascertained by the courts, and effect will be given to that which was the latest declaration of the will of the Legislature, if they are not harmonious." Thus it is seen that by this eminent law writer the rule is said to be, not only may we look back to see when either or both the provisions were enacted and took effect, but that effect should be given to that which was the latest declaration of the will of the Legislature, and this we think the law and so held in the Robertson case. Since the misdemeanor statute was enacted in 1887, and the felony statute was adopted twenty years later in 1907, it is made clear that it is the felony statute that is now in force in this State and the bringing forward, by mistake, of the repealed provision did not revive it. For other authorities so holding see Winn v. Jones, 6 Leigh, 74; Blackford v. Hurst, 26 Gratt., 203; United States v. Bowen, 100 U.S. 508; Victor v. Arthur, 104 U.S. 498; Mobile Savings Bank v. Patty, 16 Fed. Rep., 751.

But should all of the above cases be held to be erroneous, to which we do not agree but think the law correctly announced in the case of Robertson v. State, supra, still the felony statute, and not the misdemeanor statute, would be the law of this State. In the case of Chiles v. State, 1 Texas Crim. App., 27, this court said: "The two acts being passed at the same session of the Legislature ought, if possible, to be construed together, so that both might stand as one embodiment of the legislative will. But it will be perceived that these two acts, though passed at the same session, can not, by any known rule of construction, be so reconciled as that both may stand; and, in case there is such repugnance between the two as that one must give way, the rule is, the last must stand as an expression of the will of the Legislature." When the Supreme Court had jurisdiction in criminal matters, in the case of Cain v. State, 20 Tex. 359, Judge Wheeler, speaking for the court, said: "The rule is, that in construction of Acts of the same session, the whole must be taken and construed as one Act, and to make a latter provision repeal a former, there must be an express repeal, or an irreconcilablerepugnancy between them; and then the latter will control," citing 3 Moore, 77; Sedgwick on Stat. Const. Law, 410.

In a number of cases this rule has been approved: Parshall v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 759. "``The different sections or provisions of the same statute or code should be so construed as to harmonize and give effect to each, but, if there is an irreconcilable conflict, the latter in position prevails.' Lewis' Suth. on Stat. Const. (2d Ed.), sec. 268, p. 514; citing Ex parte Thomas, 113 Ala. 1, 21 So. 369; Hand v. Stapleton, 135 Ala. 156, 33 So. 689; Van Horn v. State, 46 Neb., 62, 64 N.W. Rep., 365; Omaha Real Est. T. Co. v. Kragscow, 47 Neb., 592, 66 N.W. Rep., 658. And: ``If a conflict exists between two statutes or provisions, the earlier in enactment or position is repealed by the later. "Leges posteriores priores contrarias abrogant." Where there is an irreconcilable conflict between different sections or parts of the same statute, the last words stand, and those which are in conflict with them, so far as there is a conflict, are repealed; that is, the part of a statute later in position in the same Act or section is deemed later in time, and prevails over repugnant parts occurring before, though enacted and to take effect at the same time. This rule is applicable where no reasonable construction will harmonize the parts. It is presumed that each part of a statute is intended to co-act with every other part; that no part is intended to antagonize the general purpose of the enactment. To ascertain the legislative intent every part of an Act, and other Acts in pari materia, are to be considered. One part of an Act may restrict another part — an early section a later, and vice versa; but, if one part is so out of line with other parts and the general purpose of the Act that it can only operate by wholly neutralizing some other part, then the later provision is supreme, as expressing the latest will of the law-maker. Hence, it is a rule that where the proviso of an Act is directly repugnant to the purview, the latter is repealed by it.' Lewis' Sutherland's Stat. Const., sec. 280."

So if it should be held that we have no right to look behind the enacted revision, and it is taken as one bill or law, and there are two sections of it in irreconcilable conflict, then in that event the later section is held to prevail, and the prior section held to be of no force and effect. The felony statute, being the later of the two, one being 551 and the other 558, if we consider the re-enactment as one bill, and all passed at one time, under these decisions, which we think correctly announce the law, the last article 558 would be the law, and held to repeal the earlier provision of the same Act, for that they are repugnant appellant concedes. Under no construction could it be said that the Legislature did not intend to punish a man for keeping and exhibiting a gaming table and bank, but the contrary intention manifestly appears, and whether we consider when they each passed, or consider them both passed at the same session and in the same bill, the authorities all hold so far as we have been able to ascertain, that it would be our duty to enforce article 558 as the law of this State.

We have discussed this latter proposition, although not deeming it applicable in this case, as the Robertson case and the first part of this decision correctly hold that the Act of 1907 repealed all parts of the Code necessarily repugnant to and in conflict with that Act, and the act of the codifiers in bringing forward some of the provisions theretofore repealed, also bringing forward the later adopted laws repealing them, would not render nugatory both provisions, but such ambiguous provisions and conflicting articles would not only authorize us but makes it our duty to make investigation and give expression and force to the latest expression of the legislative will, for it is not one of our functions to enact or repeal laws, but to give force and effect to the legislative will as enacted by them, and when ambiguous language is used or conflicting provisions adopted, it is our duty to search the history connected with the passage of the law; the evil intended to be remedied, that we may give full effect to their intent and purpose. The Robertson case so fully discusses this question we refer to it for a citation of authorities, and only discuss this other question, if an Act is passed containing two conflicting provisions that appellant might see that neither construction could or would avail him.

These are the two main questions presented in the motion for new trial, and in the briefs filed. There were some bills sought to be reserved to the introduction and rejection of testimony in the statement of facts, but they are so incomplete we can not intelligently review them. As an illustration we will copy one of them:

"The court erred in refusing to admit the testimony of W.H. Perrett, towit:

"Q. Did you ever have any conversation with Mr. John T. Nickles in Galveston? A. Yes, sir. State: We object to that as being hearsay. Court: Yes, sir; I can't understand the purpose. Defendant: We want to show by this man — State: We object to him stating in the presence of the jury. Defendant: We will state it to the court what we expect to prove (here defendant's attorneys step up to the court). Court: I sustain the objection."

It is seen that nowhere is it stated what was expected to be proven, so it is impossible for us to determine whether or not it was admissible, and we must presume that the court ruled properly in the premises. In another place it is shown that appellant desired to prove his "reputation as an industrious, hard-working man." What the witness would have stated in regard to this matter is not shown, and if he would have stated his reputation was good in that respect, it was not an issue in the case, and the court did not err in excluding it. The court permitted all witnesses who were offered to testify that the reputation of appellant as a peaceable, law-abiding citizen was good.

Whether or not some of the clerks of Mistrot gambled in the store and were discharged therefor, was an immaterial issue in this case, as none of those persons were introduced as witnesses. The other bills are so incomplete that we can not review the matters sought to be raised, as are the ones above mentioned.

We have carefully studied the record and the evidence justifies the verdict. There is no matter complained of in the motion that presents any error, and the judgment is affirmed.

Affirmed.