In re Application of Gannett

• Citation: 11 Utah 283,39 P. 496
• Decision Date: 23 February 1895
• Docket Number: 568
• Court: Supreme Court of Utah
• Parties: IN THE MATTER OF THE APPLICATION OF CLAYTON GANNETT FOR A WRIT OF HABEAS CORPUS

39 P. 496

11 Utah 283

IN THE MATTER OF THE APPLICATION OF CLAYTON GANNETT FOR A WRIT OF HABEAS CORPUS

No. 568

Supreme Court of Utah

February 23, 1895

Original application for a writ of habeas corpus by Clayton Gannett, who was convicted of grand larceny in the First Judicial District for stealing live stock, and sentenced to imprisonment in the penitentiary.

Writ denied.

Mr. D D. Houtz and Mr. S. A. King, for petitioner.

It is conceded by the people that if that part of the old law of 1876 (2 Comp. Laws 1888, § 4643) wherein the stealing of horses, cattle, etc., is made grand larceny, has been repealed the prisoner should be discharged. It was repealed by § 8, p. 21, Laws of 1886. The word steal in section 8, means a felonious taking. Alexander v. State, 12 Tex. 540; Winfield's Adjud. Words & Phrases, 580. The elements of larceny, as defined by the common law are identical with those contained in the offense prescribed in laws of 1886. The change of and different penalty prescribed by the law of 1886, repeals the former law by implication. Bishop's Stat. Crimes, § 168; U. S. v Claflin, 97 U.S. 546; U. S. v. Tynery, 11 Wall 88; Nichols v. Squire, 5 Pick. (Mass.) 168; State v. Kimball, 21 Pick. (Mass.) 376; State v. Ward, 6 N.H. 529; People v. Burrill, 59 Mich. 104; Buchallen v. Ackleman, 8 N. J. 48; Flaherty v. Thomas, 12 Allen, 428; Corn v. Davis, 11 Gray, 48; State v. Smith, 44 Tex. 443; Mullin v. State, 31 Ill. 444; Morris v. Cricker, 13 How. U.S. 438; People v. Tesdal, 57 Cal. 104. From § 8, p. 21, Laws 1886, it plainly appears that it was the intention to repeal the old law. They have covered the whole ground of offenses against live stock, including with stealing, other offenses, such as embezzling, killing, driving off the range, etc. It is said the legislature in 1890 considered the old law still in effect and amended it by adding the word "sheep." What that body considered makes no difference. The question of repeal is a judicial one and not for the law-making branch of the government. Dist. of Columbia v. Hutton, 143 U.S. 27; South Ottawa v. Perkins, 94 U.S. 270; U. S. v. Claflin, 97 U.S. 54. The law of 1886, p. 21, § 8, included in Comp. Laws 1888 (vol. 1, § 2209), is expressly repealed by Laws of 1890, p. 6.

So we conclude, "Where there is no penalty there is no law, and where no law there should be no punishment."

Mr. J. W. Judd, U. S. Attorney, contra.

BARTCH, J. MERRITT, C. J., and SMITH, J., concur.

OPINION

BARTCH, J.:

The petitioner was indicted, tried, and convicted of the crime of grand larceny in the District Court of the First Judicial District, and was on the 9th day of March, 1894, sentenced to imprisonment in the penitentiary for a term of two years. He was charged with having committed the offense by stealing five steers and five cows. He bases his claim for release on the ground that the indictment under which he was convicted does not charge an offense under any law of this territory, or, if it does charge an offense, it is petit larceny; and his counsel contend that the statute under which the proceedings which resulted in his conviction were had was repealed before the indictment was found. The said statute was first enacted in 1876, and, as then passed, it provides that the stealing of personal property is grand larceny "when the property taken is a horse, mare, gelding, cow, steer, ox, bull, calf, mule, jack, jenny, goat, or sheep." See Act Feb. 18, 1876, § 278. This section does not define the crime of larceny, but it is a part of chapter 5 of said act, which chapter contains the general law in relation to larceny, divides it into two degrees, and defines and prescribes the punishment for each degree. Subdivision 3 of section 278, above quoted, was amended by inserting the word "calf" after the word "mare," and the word "heifer" after the word "cow," and the word "or" before the word "jenny," and by striking out the words "goat or sheep." Sess. Laws 1886, c. 24. It will be noticed that goats and sheep were withdrawn from the operation of the act in relation to larceny. This amendment was approved March 11, 1886, and the section, as thus amended, is the same as section 4643, Comp. Laws Utah 1888, under which the indictment in this case was found. It is insisted by counsel for the petitioner that said subdivision 3 was repealed by § 8, c. 11, Sess. Laws 1886, which section reads as follows:

"Any person who shall steal, embezzle, or knowingly kill, sell, drive away, lead away, ride away, or in any manner deprive another of the immediate possession of any neat cattle, horse, goat, sheep, mule, ass or swine; or who shall steal, embezzle, or knowingly kill, sell, drive away, lead away, ride away, or in any manner apply to his own use any neat cattle, horse, goat, sheep, mule, ass or swine, the owner of which is unknown; or who shall knowingly purchase or receive of any person not having the lawful right to sell or dispose of the same, any neat cattle, horse, goat, sheep, mule, ass or swine, shall be deemed guilty of a felony, and shall be punished by imprisonment not exceeding ten years, and fined not exceeding five thousand dollars at the discretion of the court."

The act, of which this section forms a part, was also approved March 11, 1886. It will be observed that chapter 24 of the Laws of 1886, amending subdivision 3 of the act of 1876 containing said section 8, was approved and took effect on the same day, and that chapter 24 withdraws goats and sheep from the operation of the general statute in relation to larceny, and chapter 11 includes them within its terms, as provided in said section 8. The two enactments, having been approved and having taken effect on the same day, and referring to the same subject, may be treated as parts of the same statute. Manlove v. White, 8 Cal. 376. If the contention of counsel for petitioner be correct, then said subdivision 3 of the general law of larceny must be repealed by implication, for chapter 11 of the Laws of 1886 does not in express terms repeal said subdivision. It is a familiar rule of construction that repeals by implication are not favored, and a subsequent affirmative statute, general in its terms, will not be so construed as to repeal, by implication, a prior statute, unless there is such repugnancy between the two as to render them irreconcilable upon any rule of statutory construction, and then the later law in point of time will abrogate the former only to the extent of such repugnancy. Even when two statutes relate to the same subject, both will be given effect, if possible; but when the later law embraces new provisions, and covers the whole subject of the former, clearly indicating that the legislature intended it as a substitute for the former, then the later will operate as a repeal of the former law. No intention to repeal will be presumed. It must be ascertained from the context, the same as legislative intent is ascertained in other respects. The repeal by implication results from an enactment the terms of which are in conflict with an earlier act, and the necessary operation of which cannot be harmonized with the necessary effect of the later law. In such case the last expression of the legislative...