State v. Guinney

• Decision Date: 06 July 1895
• Citation: State v. Guinney, 40 P. 926, 55 Kan. 532 (Kan. 1895)
• Parties: THE STATE OF KANSAS v. ROBERT GUINEY
• Court: Kansas Supreme Court

40 P. 926

55 Kan. 532

THE STATE OF KANSAS v. ROBERT GUINEY

Supreme Court of Kansas

July 6, 1895

Appeal from Marion District Court.

AT March term, 1894, the defendant was tried upon a charge of feloniously breaking and entering a certain freight-car, the property of the Atchison, Topeka & Santa Fe Railroad Company, with the intent then and there to feloniously steal take and carry away property of the said railroad company and that, having so entered said car, he did then and there feloniously steal, take and carry away two pairs of shoes six hams, one 50-pound can of lard, and one pair of gloves of the value of $ 25, and being the property of said railroad company. He was convicted of burglary and larceny as charged in the information. Upon his motion, however, judgment was arrested on said verdict as to the charge of burglary, but he was sentenced to two years' imprisonment in the penitentiary on the verdict of conviction for larceny, and the state appealed from the order arresting judgment on the verdict of conviction for burglary.

Judgment affirmed.

F. B. Dawes, attorney general, and C. M. Clark, county attorney, for The State.

W. H. Carpenter, for appellee.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

The question in this case is whether the court erred or not in arresting judgment upon the conviction for burglary, and this depends upon the constitutionality of §§ 1 and 2 of chapter 121, Laws of 1871, entitled "An act to prescribe the punishment for certain offenses against railroad property and in railroad-cars and buildings." (PP 2196, 2197, Gen. Stat. of 1889.) The defendant claims that these sections are in contravention of both clauses of § 16 of article 2 of the constitution, the latter of which provides that, "No law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed." In Comm'rs of Sedgwick Co. v. Bailey, 13 Kan. 600, this court held that the first clause of this section is mandatory, and we see no reason why the second clause should receive a different construction and be treated as merely directory. One purpose of the clause was to discontinue the practice of amendments by striking out and inserting, and another was to call specific attention to the old statute in the enactment of the new, although, when the new is properly enacted with refererence to the old, the latter is repealed by the very force of the constitutional provision, without any legislative declaration to that effect. (Comm'rs of Jefferson Co. v. Hudson, 20 Kan. 71, 75; Case v. Bartholow, 21 id. 301, 308.) The constitutional clause in question was not intended to abolish the doctrine of repeals by implication; ( Comm'rs of Norton Co. v. Shoemaker, 27 Kan. 77; The State, ex rel., v. Cross, 38 id. 700); nor to forbid the enactment of supplemental laws; (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 768, 769, 770,) and we recognize the rule that before an act of the legislature can be declared unconstitutional, its repugnance to the fundamental law must clearly appear. ( Comm'rs of Cherokee Co. v. The State, ex rel., 36 Kan. 337.)

Are §§ 1 and 2 of the act in question intended to be amendatory of §§ 68 and 69 of the crimes act, or are they supplemental thereto, or are they intended to repeal them wholly or in part by implication? If these sections of the act of 1871 had only provided penalties for breaking into any "passenger-coach, baggage-, freight- or express-car or other railway-carriage . . . with intent to commit therein a felony or misdemeanor," they could be upheld as supplemental legislation, for prior thereto no adequate penalties were denounced against those who committed such depredations. But station-houses, depots, ticket-offices and other railway buildings were already under the protection of §§ 68 and 69 of the crimes act as warehouses and other buildings; and if these sections, and also §§ 1 and 2 of the act of 1871, are still in force then we have two laws on the same subject, and these inconsistent with each other; for by the crimes act the breaking and entering of such structures would be burglary in the second degree only when committed in the night time and with intent to steal or to commit any felony therein, while by the the act of 1871, the offence would be of that degree, although committed in the daytime and with intent to commit therein a felony or misdemeanor. Under § 69 of the crimes act, the breaking and entering of such a structure in the daytime is burglary in the third degree only. The punishment for burglary in the second degree is confinement and hard labor in the penitentiary not less than five nor more than 10 years, while for burglary in the third degree the term is not less than one nor more than five years. Again, under § 2 of the act of 1871, burglary in the third degree consists...