State v. Massey

• Citation: 9 S.E. 632,103 N.C. 356
• Parties: STATE v. MASSEY.
• Decision Date: 06 May 1889
• Court: United States State Supreme Court of North Carolina

9 S.E. 632

103 N.C. 356

STATE v. MASSEY.

Supreme Court of North Carolina

May 6, 1889

This was a criminal action tried at the spring term, 1889, of the superior court of Lincoln county, before MONTGOMERY, J. The indictment was found at the spring term, 1888. The material portions of the first count of the indictment are as follows "The jurors for the state upon their oath present that W. T. Massey, late of Lincoln county, before the 16th day of February in the year of our Lord one thousand eight hundred and eighty-five, to-wit, on the 1st day of April in the year of our Lord one thousand eight hundred and eighty-four, with force and arms, at and in said county, a mill in the possession of the said W. T. Massey unlawfully, maliciously and feloniously did set fire to, with intent thereby to injure and defraud the Georgia Home Insurance Company, being then and there a body corporate, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state." There were several additional counts, all charging the burning to have been done at the same time, and "unlawfully, maliciously," etc., but with intent to defraud some other corporate body. The last count contained a charge of burning a church unlawfully, maliciously, etc. In an indictment found at the fall term, 1888, the defendant is charged in a single count with unlawfully, maliciously, etc., burning a mill, etc with intent to defraud the Georgia Home Insurance Company, etc. The solicitor admitted the fact alleged in a plea in abatement filed by the defendant, that the offense of burning the mill was committed, if at all, on the 1st day of April, 1884. Thereupon, "the court, being of opinion that the statute in existence at the time of the offense charged has been since repealed, and there is now no statute upon which the court could proceed to judgment on conviction," ordered that the indictment be quashed, and the defendant be discharged. The solicitor appealed.

The Attorney General, for the State.

W. A. Hoke and W. J. Montgomery, for respondent.

AVERY J.

The indictment is drawn under section 985, subsec. 6, of the Code, which provides that "whoever shall unlawfully and maliciously set fire to any church, *** mill, barn, etc., whether the same or any of them respectively shall then be in the possession of the offender or in the possession of any other person, with intent thereby to injure or defraud any person or persons, body politic, or corporation, shall be guilty of felony, and imprisoned in the penitentiary for not less than five nor more than forty years." The act of 1885 was ratified and took effect on the 16th day of February, 1885, and provided that the said section, (Code, § 985, subsec. 6,) shall be amended by striking out "unlawfully and maliciously" where it appears in the section, and inserting in lieu the words "wantonly and willfully;" and by striking out the words "with intent thereby to injure or defraud any person or persons, body politic, or corporation." Chapter 66, Laws 1885. There are several established rules of construction that will aid us in determining whether the last statute cited leaves the section of the Code under which the indictment was drawn still in force as to offenses falling under its inhibition, and committed prior to the 16th day of February, 1885.

1. If a later statute is irreconcilably inconsistent in its terms with one previously enacted, it operates to repeal the older statute, so far as such repugnancy extends, by implication; but where any fair construction will reconcile a seeming repugnancy, it must be adopted. State v. Custer, 65 N.C. 339.

2. When a statute creating a criminal offense is expressly repealed, or any portion of it that is essential to sustain an indictment drawn under its provisions is stricken out by a law subsequently enacted, the former will be held inoperative, even as to offenses committed before the passage of the later act, unless a contrary intent on the part of the law-makers appear from an express saving clause, or by necessary implication from the language in the repealing statute. Lindsey v. State, 5 South. Rep. 99; State v. Long, 78 N.C. 571; State v. Wise, 66 N.C. 120. "The act punished must be criminal, when judgment is demanded, and authority to render it must still reside in the court." State v. Williams, 97 N.C. 455, 2 S.E. Rep. 55. Where the legislature re-enacts in terms or in substance an act then in force, but declares the law previously passed repealed, it is considered a reaffirmance of the old law State v. Sutton, 100 N.C. 474, 6 S.E. Rep. 687; Bish. St. Crimes, § 181. In such cases the legislative intent is implied from the very words of the repealing act. Our case cannot be brought within this principle, for there is nothing in the repealing act to indicate an intent to leave the old law unrepealed, or to reaffirm it. We cannot concur with counsel that section 3766 of the Code should be so construed as to subserve the purpose of a saving clause to the act of 1885. That section is as follows: "Where a part of a statute is amended, it is not to be considered as having been repealed, and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law since their enactment, and the new provisions as having been enacted at the time of the amendment." If the indictment could be sustained and judgment pronounced under section 985 (subsec. 6) of the Code, after striking out the words "unlawfully and maliciously" wherever they occur in said section, and also the words "with intent to defraud," etc., the defendant might be convicted and punished of this charge. But in order to sustain that view the indictment must be good under that section, read without the words stricken out, on the 16th of February, 1885. The indictment, however, is plainly framed upon the theory that the Code, § 985, subsec. 6, was still operative in the year 1888, as to offenses committed before the ratification of the act of 1885.

It is contended, however, that the original section of the Code and the act of 1885 are not totally repugnant to each other, but may be construed together, leaving the former in force up to the moment of amendment, and the amended act operative since. It is always presumed that the legislature expresses its intention in clear and explicit terms. Potter's Dwar. St 219. There is nothing in the amendatory law from which we can even infer the words were to be considered as stricken out as to future offenses only. We find there the simple mandate of the law-making department that the subsection "be amended by striking out," etc. It was so amended on its ratification when it took effect. Where an amendatory law repeals a proviso to a section of a former act, or a whole section of a former act, but the section without the proviso, or the section not affected, will support an indictment, the law referred to (section 3766) will apply. But it is enough to show that it has no application in this case. If this court should attempt to supply the omissions of the legislature, and resort to strained constructions of criminal statutes in order to prevent the escape of...