Hickson v. State

• Decision Date: 23 July 1954
• Citation: Hickson v. State, 196 Tenn. 659, 270 S.W.2d 313, 32 Beeler 659 (Tenn. 1954)
• Parties: , 196 Tenn. 659 HICKSON v. STATE.
• Court: Tennessee Supreme Court

Page 313

270 S.W.2d 313

32 Beeler 659, 196 Tenn. 659

HICKSON v. STATE.

Supreme Court of Tennessee.

July 23, 1954.

Maner & McClure and George P. Balitsaris, Knoxville, for defendant.

Nat Tipton, Asst. Atty. Gen., for the State.

SWEPSTON, Justice.

Plaintiff in error was indicted for breaking into a railroad car and at the same time was indicted as an habitual criminal. Upon the trial he was found guilty of the felony charged and also of being an habitual criminal, and was sentenced under the statute to life imprisonment. The appeal is from the sentence of the habitual criminal statute.

Diligent counsel appointed by the Court to defend this man assigns as the first error that the conviction of the defendant as an habitual criminal cannot be sustained as the crime of breaking and entering a freight car is not recognized within the habitual criminal statutes, Code sec. 11863.2 of the 1950 Supplement. This statute specifies certain felonies which are described by certain Code section numbers, including 11762, and it is assumed by counsel for plaintiff in error and for the State for the purpose of this assignment, that plaintiff in error has been convicted three separate times prior to the present conviction, and that they were offenses which are included within that statute; it is further assumed that if Code section 11762, defining infamous crimes, does not, when properly construed, embrace this fourth offense, then he should not have been convicted of being an habitual criminal.

Counsel's insistence is that the infamy statute, enacted in 1829, Chapter 23, section 71, and as the same is carried into the 1932 Code as section 11762, does not specifically include the offense of breaking into a freight car, which was made an offense by the Acts of 1885, Chapter 19, and is now carried in the Code as section 10914, as amended by the Acts of 1941, Chapter 65; but that only burglary and felonious breaking and entering a dwelling house are included in the infamy statute; further, that the first statutory burglary statutes were enacted in 1829, Chapter 23, sections 19 and 30, which are carried into the Code as sections 10910 and 10912, and which make it an offense to break and enter a dwelling house by night with intent to commit a felony, or to break and enter a dwelling house by day with intent to commit a felony; further, he calls attention to the Acts of 1953, Chapter 63, by which breaking into a dwelling house by day is made burglary in the second degree. It might be noted also that Chapter 65 of the Acts of 1953 amends section 10913, making it burglary in the third degree to break into a business house, outhouse, etc.

Counsel, therefore, urges that in applying the rule of strict construction of penal statutes, as announced in Richmond v. State, 171 Tenn. 1, 100 S.W.2d 1, burglary in the infamy statute must be defined as it was at the time of the passage of the infamy statute in 1829, which was the breaking and entering of a dwelling house in the nighttime, as defined in Code sec. 10910. That is the equivalent of saying that burglary as it appears in the infamy statute today should be given its common-law definition only.

There seem to be two answers to plaintiff's contentions, however. The first is that the Tennessee Code of 1932 is a comprehensive Act of the General Assembly of 1931, Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013.

Herein lies the distinction between a compilation of laws on one hand, and on the other, the enactment by the Legislature of all of the law into a Code. 82 C.J.S., Statutes, § 271, p. 451, Note 72.

It would, therefore, seem inappropriate to relegate the word 'burglary' to its definition in 1829. Moreover, reference to Code secs. 10910, Notes, and 10917, discloses that under our statutes the word 'burglary' is treated as a generic term covering several cognate offenses falling under sections 10913-10916, section 10914 being the offense involved in this case, Cronan v. State, 113 Tenn. 539, 82 S.W. 477; Chapple v. State, 124 Tenn. 105, 135 S.W. 321. Section 10917 provides that any person indicted for burglary may be convicted under either of the preceding sections of this article.

Certainly, as a matter of statutory construction, it is well established that every part of a statute must be given some meaning, if possible. 82 C.J.S., Statutes, § 346, p. 705. Looking again at the phraseology of the infamy statute, it is obvious that the offense described therein as 'felonious breaking and entering a dwelling house' embraces both the common law and the statutory definition of burglary with respect to breaking and entering a dwelling house. Therefore, the use of the word 'burglary' was entirely unnecessary unless it is to be given some meaning other than its common-law definition. The answer is that, as stated above, it is a generic term and includes such other cognate offenses than the breaking and entering a dwelling house as at least existed when the 1932 Code was adopted. This is consistent also with the general rule that provisions of the Code that are in pari materia must be construed together, and the construction of one, if doubtful, may be aided by a consideration of the word of, and the legislative intent indicated by the others. 50 Am.Jur. 470, sec. 456.

Finally, it is...