State v. Lewis
| Decision Date | 07 April 1955 |
| Citation | 278 S.W.2d 81,2 McCanless 91,198 Tenn. 91 |
| Parties | STATE of Tennessee v. Jackie LEWIS et al. 2 McCanless 91, 198 Tenn. 91, 278 S.W.2d 81 |
| Court | Tennessee Supreme Court |
Knox Bigham, Asst. Atty. Gen., Hoyt Bryson, Woodbury, for the state.
Cummings & Melton, Woodbury, for defendant.
This is an appeal by the State from a judgment sustaining a motion to quash an indictment.
By the first count of the indictment Jack Lewis and others are indicted under Code Section 10841, in that having no color of title either tax, equitable, or otherwise, they did unlawfully, wilfully and without permission of the owner thereof, enter upon the lands of the said owner, John T. Evans, and cut down and remove therefrom, trees, timber, wood and logs growing and standing and lying and being thereon.
In the second count the receiver of said timber, Lawton Lewis, was indicted for unlawfully and wilfully receiving into his possession and purchasing the said trees, timber, etc., mentioned in the first count, knowing the same to have been so cut or removed without the permission of the true owner with intent to profit himself thereby.
The first ground of the motion to quash is that there is no offense charged in the indictment because Code Section 10841 is alleged to have been impliedly repealed by Chapter 216 of the Public Acts of 1937, which Acts are incorporated into the 1950 Code Supplement as Sections 10841.1-10841.4.
The 1937 Act makes it unlawful for any person to cut, haul, remove or sell timber without a written certificate from the owner, giving the name and address of the seller and the date such timber was sold, and designating the land and location from which the timber was cut, and Section 2 thereof requires anyone purchasing such timber to make diligent inquiry, and to obtain from the seller the certificate signed by the original owner of the timber and said certificate must be preserved for a period of two years and made available for inspection to any person concerned.
It is obvious from an inspection of the 1937 Act, Sections 3 and 4, that there was no legislative intent to repeal expressly Code Section 10841, but to the contrary, the apparent intention was to incorporate the 1937 Act into the old Code Section. If, however, there is an irreconcilable conflict between the two, then of course, as insisted by the defendants, there would be a repeal of the Code Section by implication.
The State very plausibly urges that there is no irreconcible conflict between the two; it is said that Code Section 10841, that is Chapter 397 of the Acts of 1907, as amended, prohibits the cutting and removing of timber without permission of the owner, while it is alleged that the 1937 Act prohibits the cutting and removing of timber without written evidence of the owner's permission and that the later Act is primarily designed to provide a system for tracing timber and keeping records of its origin.
The question involved is full of difficulty but after careful study, it seems to us that the old Code Section and the 1937 Act are in irreconcilable...
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...different degrees of punishment cannot exist at same time." Mowery v. State , 352 S.W.2d 435, 437 (citing State v. Lewis , 198 Tenn. 91, 278 S.W.2d 81, 82 (1955) ). The burglary statute and the "serial shoplifter" statute prohibit different criminal activities. The two offenses have differe......
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...or diminished.' 82 C.J.S., Statutes § 303 page 520. See also State v. Davidson, 1957, 78 Idaho 553, 309 P.2d 211; State v. Lewis, 1955, 198 Tenn. 91, 278 S.W.2d 81; State v. Biddle, 1950, 6 Terry 244, 45 Del. 244, 71 A.2d 273; Sutherland Statutory Construction (3rd Ed.), Sec. 2031; 50 Am.Ju......
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...embraced in § 39-4207, with the intent to injury or defraud, shall be punished as if guilty of larceny.' In the case of State v. Lewis, 198 Tenn. 91, 278 S.W.2d 81, the Court in dealing with two statutes prohibiting the same wrong and prescribing different degrees of punishment which is the......
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...the earlier one, and this is true whether the penalty is increased or diminished.' See, also: State v. Davidson, supra; State v. Lewis (1955), 198 Tenn. 91, 278 S.W.2d 81; State v. Biddle, supra; Sutherland Stautory Construction (3rd Ed.) § 2031; and, 50 Amer.Jur. Statutes § We therefore ad......