Ex Parte Spann

It appears that we were in error in stating in the original opinion that chapter 172, General Laws, Regular Session of the 39th Legislature, and the Revised Criminal Statutes of 1925 took effect at the same time. It is observed that it was provided in chapter 172 that its provisions should become effective from and after September 1, 1925, whereas, in adopting the Revised Criminal Statutes of 1925, the effective date was fixed as follows: "This Act shall take effect and be in force from and after twelve o'clock Meridian, of the First day of September, Anno Domini, One Thousand Nine Hundred and Twenty-five."

It does not follow that appellant's contention that chapter 172, supra, repealed article 923, P. C., 1925, under which the conviction was had, should be sustained. In enacting chapter 172, the Legislature did not undertake to expressly repeal article 923, supra. No section is found in chapter 172 denouncing as an offense the mere possession of game birds at any time of the year except during the open season. Section 9 of the Act denounces possession for the purpose of sale at any time of the birds therein enumerated. Section 7, among other things, denounces the killing, taking, hunting, wounding, or shooting of any game bird or game animal at any other time of the year except during the open season, and provides a penalty of not less than ten nor more than two hundred dollars. Nothing in the section last mentioned relates to the mere possession of game birds during the closed season. Article 923, supra, in so far as the mere possession of game birds during the closed season is denounced as an offense, does not appear to be in conflict with any of the provisions of chapter 172.

It is to be observed that in adopting the Criminal Statutes of 1925, the Legislature embraced therein chapter 172, supra. Article 922, P. C., 1925, recites that said chapter should be known as the "Boyd-Hubby Game Bill" and that its provisions should become effective from and after September 1, 1925. Immediately following the insertion of the provisions of chapter 172, supra, the codifiers wrote article 923, supra, into the code; the provisions of the two acts appearing in the same chapter of the Penal Code (Chapter 6, Title 13, P. C., 1925).Thus it would appear that it was not the intention of the Legislature that chapter 172, supra, should comprehend the entire subject matter relating to the protection of game birds. On the contrary, we are impressed with the view that the Legislature intended that article 923, supra, should be construed in connection with the provisions of chapter 172, supra, and given effect.

Repeals by implication are not favored. Berry v. State,69 Tex. Crim. 602; Jesse v. DsShong (Texas Civ. App.),105 S.W. 1011. Further, a repeal by implication must be by necessary implication. Jesse v. DeShong, supra. In Berry v. State, supra, this court quoted from 26 Amer. Eng. Ency. of Law, pp. 717, et seq., as follows: "A statute is repealed by implication whenever it becomes apparent from subsequent legislation that the Legislature does not intend the earlier act to remain in force, and the converse of this proposition is that no statute will operate as an implied repeal of an earlier statute, if it appears that the Legislature did not intend it so to operate. Though repeal by implication is not favored, it necessarily results in any case of repugnancy or inconsistency between two successive statutes, or in any case where the intention of the Legislature is manifest that a later statute should supersede an earlier one."

The application is denied.

Denied.