Jackson v. State

• Decision Date: 08 January 1912
• Citation: Jackson v. State, 142 S.W. 1153, 101 Ark. 473 (Ark. 1912)
• Parties: JACKSON v. STATE
• Court: Arkansas Supreme Court

142 S.W. 1153

101 Ark. 473

JACKSON v. STATE

Supreme Court of Arkansas

January 8, 1912

Appeal from Desha Circuit Court; Antonio B. Grace Judge; affirmed.

Judgment affirmed.

X. O Pindall, for appellant.

1. The evidence does not show either a clandestine taking, or any attempt at concealment, or that the possession by the appellant was other than a mere trespass. To constitute larceny, there must be simultaneously an unlawful taking asportation and felonious intent. The court erred in refusing to direct a verdict for the defendant. 110 Ky. 123, 60 S.W 938; 62 Kan. 469, 84 Am. St. Rep. 411; 2 Bishop's New Crim. Law (8 ed.), § 842; 41 Fla. 291; 79 Am. St. Rep 186; 3 Id. 691; 133 Ala. 145.

2. The verdict is contrary to the law as declared by the court to the effect that "if the taking was without felonious intent to steal then existing in his mind at the time of such taking, and he afterwards marked the pigs in pursuance of an intention to steal them formed at some time subsequent to the taking, this would constitute a separate offense." There is no proof whatever showing or tending to show that the marking occurred at the time of the taking, and no inference can reasonably be drawn from the testimony to that effect. 40 Fla. 480, 74 Am. St. Rep. 154.

3. The court erred in excluding testimony offered for the purpose of showing the witness Hudson's feelings and motives. He had pretended to state a knowledge of appellant's motives, and as a test of his own it was competent to prove that he had quarreled with appellant's white adviser, Cole Bush, and was actuated by hard feelings towards him.

4. Appellant's conviction at the so-called August term of the circuit court was void for want of jurisdiction. 52 Kan. 29; 39 Am. St. Rep. 327. Until the passage of the act of May 26, 1911, the time for holding the regular terms of the Desha Circuit Court was the second Mondays in January and July of each year. Kirby's Digest, § 1302. The second section of the act preventing it from taking effect for 90 days from its passage is as much a part of the act as any other. Before the expiration of the 90 days, the time for the regular July term came, and that term was neither held nor adjourned, and it lapsed by operation of law. 39 Am. St. Rep. 328. The effect was to carry over all court business until the next regular term, the January, 1912, term. Kirby's Digest, § 1328; 49 Ark. 227; Brown on Jurisdiction, 67 § 15a.

An act speaks only from the time it takes effect, and not from the time it was signed. 1 Lewis, Stat. Con. 312, § 175; 1 Ia. 435; 46 Mich. 46. The intent of the Legislature is the law. 21 Me. 58; 64 Me. 135; 34 Ga. 270; 1 Ia. 443. As to the intent of the Legislature, it is obvious that the act was passed with full knowledge of section 1328, Kirby's Digest, and of the custom throughout the State of holding only two regular terms of the circuit court each year in counties having but one district; also that it did not lapse the July term, 1911, but expressly preserved it and held it intact in withholding the act from taking effect until 90 days after its passage. The intent must prevail over literal interpretation. 21 Mont. 205; 47 N.Y. 140; 29 Ala. 451; 67 N.W. 140. See also 15 Ia. 257; 22 Ia. 340.

5. When the bill was introduced in the Legislature, there was no probability and no assurance that it could or would be made a law in time for it to become operative by the 28th day, being the fourth Monday, of August, 1911, since it contained the ninety-day clause. The Legislature can not, therefore, be presumed to have intended this act to take effect in Desha County in the year 1911. Art. 6, sec. 15, Const. ; 73 N.Y.S. 953.

6. The "ninety days after the final adjournment," etc., provided for filing referendum petitions, must mean ninety days from the time when final action on the bill could possibly be had; for until final action there could be no necessity for reference, since only that could be referred which, without a reference, would have effect. 26 Utah 1.

Considering the Amendment No. 10 in connection with art. 6, sec. 15, Const., the ninety-day clause of the amendment means either ninety days from the time the Governor has exercised his final discretion, or that the people are to have but seventy days in which to petition for a reference of measures other than those containing the emergency clause, since it can not reasonably be expected that they would ask for a reference of a measure until the final determination had been had with reference to that measure as to whether or not it should be left in the form having the effect, and therefore be the subject of reference.

The term "take effect and be in force from and after its passage," employed in the act, can only mean after the act goes into effect. Art. 5, sec. 2, Const. 1868; 31 Ark. 701; 53 Ore. 162; 70 S.W. 945; 100 S.W. 1042; 6 Ia. 89; 38 Ind. 633; 74 Ia. 171; 64 Me. 133; 10 Mich. 135; 13 Mich. 318.

In a supplemental brief appellant's counsel argues that the act does not disclose by what authority it was enacted. Its plurality of enacting clauses destroys the effect of either, and renders it void for want of disclosure of the authority for its enactment, the authorities therein assigned being in conflict and at variance. 27 Ark. 276, 284, 285; 36 Cyc. 967, 968; 91 Ind. 546; 120 Ill. 322; 11 N.E. 180; 10 Nev. 250; 21 Am. St. Rep. 738; Cushing's Law & Proceed. Leg. Assemblies, 819, § 2101; 73 Minn. 203; 72 Am. St. Rep. 616.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. There is sufficient evidence in the record to sustain the verdict. The jury having reached their verdict under testimony, the weight of which was solely for them to judge, and under instructions to which no objections were interposed, this court will not disturb the verdict. The mere fact that the testimony might be weak or that a preponderance of it might be in favor of the appellant does not entitle him to a reversal. 94 Ark. 169; Id. 548; 63 Ind. 285; 105 Mass. 163.

2. There was no abuse of discretion in excluding the testimony as to the state of feeling between the witness Hudson and Cole Bush. Its admission would have tended only to confuse and mislead the jury.

3. The act of 1911 was approved on the 26th day of May, and, according to its terms, was to become effective ninety days thereafter, that is to say, on August 24.

When, under the old law, the July term lapsed, the court stood adjourned until the next term fixed, or to be fixed. According to its terms, the new statute became effective four days before the fourth Monday in August. When a term of court lapses, it stands adjourned until "court in course," i. e., until in the course of events the next designated time for holding a term of court; and the time in this case, the Legislature having the right and power to change the time for holding the terms of circuit courts as it sees fit, and its act to that effect in this case having become effective, was the fourth Monday, 28th day, of August.

We concede that, unless the act was an emergency measure, and unless the Legislature found that an emergency existed calling for its immediate operation, it could not, under the provisions of Amendment No. 10, become effective until ninety days after the final adjournment. 88 P. 522; 71 P. 721.

While the Legislature is prohibited from making a general law, other than an emergency measure, effective prior to ninety days after adjournment, there is nothing in the Constitution or this amendment which prohibits it from providing that the law shall become effective at some stated time subsequent to the expiration of ninety days after adjournment. In this case the act provided that it should become effective "ninety days from and after its passage." Since an act is not passed until approved by the Governor, or, if vetoed by him, by the constitutional majority over his veto, the "ninety days after its passage" in this case means that length of time after May 26, 1911, when the Governor approved the act.

Counsel for appellee, after discussing the authorities relied on by appellant, state the distinguishing feature of this case to be that "in the instant case the ninety days after its passage refers to the time that the act as a whole should become operative and effective. Citing, as tending to support appellant's contention, 61 S.W. 218; 14 S.E. 407; 33 Pa. 202; 82 Mass. 144; 1 P. 343; 64 N.W. 348. Also 15 L. R. A. 243; 3 Heisk. (Tenn.) 443.

4. The plurality of enacting clauses does not vitiate the act. It shows on its face that it is a legislative enactment, and not initiated by the people, and judicial notice will be taken of the fact that it has not been referred to the people under Amendment No. 10. One or the other of the enacting clauses was necessary. It is not necessary to determine which was the proper form. Either of them being right, the other should be treated as surplusage. See 106 P. 540; 19 P. 821.

Stuckey & Stuckey and Morris M. Cohn, as amici curiae.

(a) It is not necessary for every act of the General Assembly to contain the terms relating to enactment by the people, in all cases, whether the act is or is not initiated by or referred to the people. 85 Ark. 171; 106 P. 540; Id. 544; 109 P. 821; Id. 820.

(b) It is well settled that an act of the General Assembly takes effect from the day it is approved by the Governor, unless it contains words to the contrary. 7 Wheat. 164; 1 Ala. 312; 2 Ala. 26; 2 Ill. 555; 1 Morris 9; 14 Mo. 184; 74 Am. Dec. 522; 3 S.C. 564; F. Cases, No. 397; Id. No. 11,777; 8 Ala. 119; 31 Ala. 383; 8 Ga. 380; 76 Ga. 741; 50 Tenn. 442.

The provision in the amendment that the veto power of the Governor shall not extend to measures referred to the people...