Hall v. State
| Decision Date | 31 December 1879 |
| Parties | John Hall et als. v. The State. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM RUTHERFORD.
Appeal in error from the Criminal Court of Rutherford County. J. M. QUARLES, J.
C. A. SHEAFE and J. W. CHILDRESS for Hall et als.
ATTORNEY-GENERAL LEA for the State.
The plaintiff in error, seven negroes and one white man, were indicted and convicted for arson. The white man and five of the negroes prayed an appeal in error to this court, which was granted, after their motions for a new trial, and in arrest of judgment were overruled. The other two negroes, John Hall and Burrell Smith, have brought the case before us by writ of error. They have, however, been sentenced to death by this court upon another indictment for murder, and this case, as to them, will not now be disposed of.
The indictment was found, and the defendants tried at a special term of the Criminal Court of Rutherford county, appointed by the judge of that court in vacation, as prescribed by the Code, section 3941. It is argued on behalf of the appellants, that the trial of new cases could not be had at that time. In support of this position, counsel cite Brown v. Newby, 6 Yer., 395. But that case merely holds that, under the act of 1827, ch. 79, sec. 4, the court had power to appoint a special term to do any and every description of business on the docket, and that an appointment “for the trial of the causes on the civil docket,” would include chancery as well as law cases. The act of 1827 gave power to appoint a special term for the trial of all cases “upon the docket.” The argument is that the causes to be tried could only be those “upon the docket” at the time of the appointment of the special term, and that the like construction should be given to the section of the Code based on the statute. The construction put upon the language of the original statute is, perhaps, too narrow. No doubt the main object for authorizing special terms, was to relieve the dockets from the business then on them, but it would not follow that after the term was appointed, any business properly on the docket during the term, might not be disposed of, all other questions out of the way. And the Code, as if to remove all doubt, authorizes the appointment of a special term “whenever it is necessary for the dispatch of business,” and directs that “all the business of every nature and kind shall be conducted as at the regular term,” Code, sections 3940, 3945. No objection to the trial of the cause on this ground was made in the court below. Two of the defendants, McFerrin and Butler, applied for a continuance on affidavits filed, but these affidavits are not in the record, nor is any error assigned in the action of the court on them.
The indictment contains two counts; the first count is for willfully, maliciously and feloniously burning “a certain house, to-wit, a store house of the value,” etc. The second count is for similarly burning “a certain valuable building, to-wit, a store house,” etc. The first count is based on the Code, section 4666, and the second on the Code, section 4668. It is objected that these sections of the Code were, by implication, repealed by the act of the 17th of May, 1865, ch. 5, and, although the latter act was expressly repealed by the act of 1877, ch. 84, sec. 1, that the provisions of the Code were not revived, because their “title or substance” was not recited in the caption or otherwise of the act of 1877, which, it is insisted, is necessary to revive the previous law under the Constitution of 1870, art. 2, sec. 17.
The Code, section 4666 is: “Any person who willfully and maliciously burns the house or out-house of another, is guilty of arson, and shall be punished by confinement in the penitentiary not less than five nor more than twenty-one years.”
Section 4668: “Every person who shall willfully and maliciously burn or set fire to any house, barn, stable, or other valuable building, or any building containing valuable property therein, or any stack or shocks of grain, fodder, straw or hay, or any valuable bridge, boat, or other water craft, shall be imprisoned in the penitentiary not less then two years nor more than twenty-one years.”
The act of 1865, ch. 5, sec. 4 is:
The act, it will be seen, does not in terms repeal any pre-existing acts. On the contrary, it says that nothing in it shall be construed “as repealing the laws now in force for the punishing of the offenses mentioned.” It is true, this language, when construed in connection with what immediately follows, might be held to mean that the laws then in force were not to be considered as repealed, so far as offenses previously committed were concerned. But the whole act of 1865 was of a peculiar character, manifestly intended to meet the state of demoralization touching the rights of property existing at the close of the war, and to be temporary, not permanent. By its first, second and third sections it prescribes the punishment of death, with the like power in the jury to commute to confinement in the penitentiary for an increased term of years, for the crimes of stealing a horse, mule or ass, or breaking open the “house of another,” and robbing or stealing from the person. The object of the proviso at the end of the fourth section seems to have been to prevent the repeal by implication of the existing laws on these subjects, and to show that the act itself was designed to add additional punishment for the offenses.
The act was really in terrorem, to restrain the license of the hour, leaving the administrators of the law the option of proceeding under it, or under the previous statutes. Repeals by implication are never allowed, unless the latter and the former acts can not possibly stand together. Cate v. State, 3 Sneed, 120; Smith v. Hickman, Cooke, 330. And the general rule is, that subsequent statutes which add cumulative penalties, or institute new modes of proceeding, do not repeal former penalties or methods of proceeding, without negative words, Bennett v. State, 2 Yer., 472; so held, where the defendant had been indicted under the existing law for an offense the punishment of which was a fine, and claimed that a subsequent act, which punished the same offense by imprisonment, pillory and infamy, repealed the previous penalties. And in that case there was no such proviso as is found in the act of 1865.
The act of 1865 increases the punishment for “house and bridge burning,” and also for breaking open “the house of another.” The latter words came before this court for construction in Palmer v. State, 7 Col., 82, and were held, in view of the highly penal character of the act, to embrace only a mansion or dwelling house. This construction was followed in Mathis v. State, 3 Heis., 127. In this view, and for the same reason, the “house burning” of the fourth section would be limited to the mansion house, leaving the pre-existing law in full force as to every other class of houses. The provisions of the Code, so far as they are applicable to a “store house,” the character of building described in the indictment before us, have never been interfered with. The argument relied on rests upon the assumption that the sections of the Code, under which this indictment was found, were repealed in toto, and necessarily fails in the view we have taken.
In this view, too, it becomes unnecessary to consider whether a statute which has been repealed, will be revived by a repeal of the repealing act, without being recited by its title or substance in the caption or otherwise of the last repealing act, under the provision of the Constitution of 1870, art. 2, sec. 17.
The first count of this indictment is framed under the Code, section 4666, for burning “a certain house, to-wit, a store house,” etc. The second count is under the Code, section 4668, for burning “a certain valuable building, to-wit, a store house,” etc. The punishment under the first of these sections is confinement in the penitentiary for not less than five nor more than twenty-one years; under the second, for not less than two nor more than twenty-one years. No motion was made to quash the indictment, nor to compel the attorney general to elect upon which count he would proceed. The joinder of several distinct felonies of the same degree constitutes no ground of demurrer or arrest of...
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