Braun v. State

• Decision Date: 22 February 1899
• Citation: 49 S.W. 620
• Parties: BRAUN v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 620

BRAUN v. STATE.

Court of Criminal Appeals of Texas.

February 22, 1899.

Appeal from Grayson county court; J. H. Wood, Judge.

Fred Braun was convicted of an offense, and he appeals. Reversed.

Hazlewood & Smith, for appellant. Robt. A. John, for the State.

HENDERSON, J.

Appellant was convicted of violating article 891 of the Penal Code of 1895, which was formerly article 756 of the Penal Code of 1879, requiring butchers to make report of the animals slaughtered by them to the county commissioners' court of their respective counties. Appellant contends that this article 756 of the Penal Code of 1879, under which this indictment was framed, was repealed by the act of 1889 (Laws 21st Leg. p. 84), and by the subsequent act of 1893 (Laws 23d Leg. p. 38), because he says that said acts related to the subject-matter embraced and covered by said article 756, and repealed said article 756 by implication. The courts have laid down this rule of construction of penal statutes, to wit: "To effect the repeal of an earlier act, the subject thereof must be treated, and both statutes enacted to accomplish the same object." 23 Am. & Eng. Enc. Law, p. 495. Furthermore, "it is a settled principle of statutory construction that repeals by implication are not favored, and will not be decreed, unless it is manifest that the legislature so intended. As laws are presumed to be passed with deliberation and full knowledge of all existing ones on the subject, it is but reasonable to conclude that, in passing a statute, it was not intended to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and following necessarily from the language used, unless the later act fully embraces the subject-matter of the earlier, or unless the reason for the earlier act is, beyond peradventure, removed. Hence, every effort must be used to make all acts stand, and if, by any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the earlier. It is frequently found that the conflict between two statutes is apparent only as their objects are different; and, when the language of each is restricted to its own object, they run in parallel lines without meeting, or the later act can be construed as a modification of or exception to the earlier one, thus avoiding all conflict between the two." 23 Am. & Eng. Enc. Law, p. 489 et seq.

Now, applying the above rules of construction to the case before us, we think that article 756 of the Penal Code of 1879, under which appellant was indicted in this case, requires of butchers to make a report to the commissioners' court, at each regular term thereof, of all cattle, giving the marks and brands and colors, that said butcher may have butchered during the time intervening between the meetings of the court, and inflicts a punishment upon said butcher for failing to comply therewith. The statute that appellant contends repeals this article provides that each butcher shall execute a certain bond, and keep a certain book, in which he shall make a report, and provides for the pay of an inspector to examine that book, and a report by that inspector, and the punishment of the inspector for the nonperformance of his duties. Now, this statute has not the "same object and the same subject" as required under the rules of statutory construction heretofore laid down. One has no reference to the other. Both can exist at one and the same time, there being no apparent conflict between them. We therefore hold that both laws stand, the later not repealing the former. See Walker v. State, 7 Tex. App. 257; U. S. v. Claflin, 97 U. S. 546; Coghill v. State, 37 Ind. 111; Cate v. State, 3 Sneed, 120. And almost this identical question was decided in Dreyer v. State, 10 Tex. App. 97.

Appellant contends that, notwithstanding there may be no conflict between said article 756 (which is article 891 in the Revised Penal Code of 1895) and the subsequent acts of the 21st and 23d legislatures, yet, by reason of the codification of the laws of 1895, Grayson county is eliminated from the provisions of article 891 (formerly article 756), because, as he contends, the legislature, in passing the Revised Code, adopted the work of the codifiers, and passed chapter 12, beginning with article 887 to article 902, inclusive, and that article 899, by its express provisions, eliminates Grayson county, with other counties named, from the effect of the preceding article 891. We find the Penal Code in the condition as stated by appellant, and article 899 uses this language: "The provisions of this law shall not apply to either of the following counties, to wit: * * * Grayson," etc. It is contended, however, by the state, that we are not controlled by the legislature codifying the laws, but that we can look back to the laws from which these articles were taken, in order to determine whether or not Grayson county is subject to said article 891 (formerly article 756). Article 756 was in the Penal Code when the act of 1889 was passed and amended by the act of 1893. Evidently, the proviso eliminating Grayson and other counties from the provisions of the law of 1889 had nothing to do with article 756 of the Penal Code. Although Grayson county was eliminated and not subject to the acts of 1889 and 1893, yet it remained subject to the provisions of article 756. No doubt, it would have been competent for the 24th legislature to have passed an independent and original bill, embracing article 756 and the act of 1893 (all relating to butchers), and then, by a proviso, have eliminated Grayson county from the operation of all the provisions of said act; and it may be conceded that it would have been competent for said legislature to have done so in a revision of the Penal Code, bringing forward said article 756 (now article 891) and the provisions of the act of 1893, all relating to butchers, and then, in said chapter, by an article, enacted that the provisions of said preceding articles, all relating to butchers, should not apply to either of the following counties, naming them, including Grayson county. But in such case the intention to embrace all these articles together, and to exempt Grayson county from the provisions of all of said acts, must be clear and unambiguous. See Black, Interp. Law, pp. 368, 369; End. Interp. Laws, §§ 40, 202. On the other hand, the intention to make a change must be manifest. As stated by Mr. Black (page 368): "When the language of the code or revision as it stands would lead to absurd or highly improbable results, it may be compared with the language of the original statute, to ascertain if the phraseology has not been changed by mistake or inadvertence." And the general presumption will be indulged that the codifiers did not intend to change the laws as they formerly stood, their functions being merely to bring forward and arrange them, and that the legislature, in codifying the laws, intended to bring them forward, giving them the same effect which they formerly had. True, the legislature, in re-enacting the Code and Code of Criminal Procedure, stated "that the articles brought forward shall hereafter constitute the Penal Code and Code of Criminal Procedure"; and they further enacted "that all penal laws and all laws relating to criminal...