State v. Smith
| Decision Date | 02 November 1907 |
| Citation | 105 S.W. 68 |
| Parties | STATE v. SMITH. |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Bledsoe County; Joseph C. Higgins, Judge.
Frank Smith was indicted for unlawfully cutting timber for market from land which he did not own, without the owner's consent. From an order sustaining a motion to quash, the state appeals. Reversed and remanded.
The Attorney General, for the State.
The indictment in this case charged that the plaintiff in error "on the ____ day of April, 1906, and on divers other days prior to that date, and up to the finding of this indictment, in the state and county aforesaid, did unlawfully, knowingly, willfully, and feloniously cut and remove from said tract of land" (previously described in the indictment) "timber growing upon said land, for the purpose of marketing the same, without the consent of said John C. Myers and William C. Johnson, the owners in fee of said tract of land, contrary to the said form of the statute in such case made and provided, and against the peace and dignity of the state."
This indictment was based on chapter 106, p. 257, of the Acts of 1897. That act provides that it shall be a felony for any one to "knowingly, willfully, and maliciously cut or to remove, for the purpose of marketing the same, timber from the lands of another, without the consent of the owner of the timber so cut or removed."
By chapter 381, p. 889, of the Acts of 1899 an effort was made to amend the foregoing statute by striking out the words "and maliciously"; but this latter act is void, because it violates article 2, § 17, of the Constitution, since it does not recite in its caption or otherwise the title or substance of the law sought to be amended. Memphis Street Ry. Co. v. State, 110 Tenn. 598, 75 S. W. 730.
In the court below the indictment in the present case was quashed because it omitted the word "maliciously," and substituted therefor the word "feloniously." The question to be determined is whether the substituted word supplied the place of the word omitted.
It is always best to pursue the words of the statute; but where a word not in the statute is substituted for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. Peek v. State, 2 Humph. 85; Starks v. State, 7 Baxt. 65; State v. Pennington, 3 Head, 120.
In order to a correct determination of the question whether the word "feloniously" was a proper substitution for the word "maliciously" in the statute referred to, it is necessary that we construe all three of the significant words defining the offense, and ascertain the meaning of the word "maliciously" in the connection in which it stands.
The word "knowingly" has been construed by this court as being that state of mind wherein the person charged was in possession of facts under which he was aware he could not lawfully do the act whereof he was charged; knowledge of the law being necessarily imputed to him, as in all criminal cases. This was held in a case wherein the party was indicted for illegal voting under a statute which provided that "any person who shall knowingly vote at any election, not being at the time a qualified voter in the county in which he so votes, shall be adjudged guilty of a...
To continue reading
Request your trial
-
Cheatham County v. Murff
...laws amended. Following Memphis Street Ry. Co. v. State, supra, are Railroad Co. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137; State v. Smith, 119 Tenn. 521, 105 S.W. 68; Hessig-Ellis Drug Co. v. Stone, 129 Tenn. 608, 167 S.W. 864; Willis v. Mann Construction Co., 145 Tenn. 318, 236 S.W. 282; an......
-
United States v. Starkey, 16029.
...person charged is in possession of facts under which he is aware he can not lawfully do the act with which he is charged. State v. Smith, 119 Tenn. 521, 105 S.W. 68, 69. Following this reasoning, it has been held repeatedly that proof of knowledge of facts and circumstances which, if follow......
-
State v. Doud
...count is not open to the objection made. 'Feloniously,' in a legal sense, means 'done with intent to commit a crime.'' State v. Smith, 119 Tenn. 521, 105 S.W. 68, 70, says: "Feloniously' is defined in the Century Dictionary as follows: 'With a deliberate intent to commit a wrongful act, the......
-
State v. Summers, 110
...the person charged was in possession of facts under which he was aware he could not lawfully do the act charged. State v. Smith, 119 Tenn. 521, 105 S.W. 68, 69 (1907). The obscenity law itself defines "knowingly" as "having actual or constructive knowledge of the subject matter". "A person ......