State v. Wheeler

• Decision Date: 28 January 1913
• Citation: 152 S.W. 1037
• Parties: STATE v. WHEELER.
• Court: Tennessee Supreme Court

152 S.W. 1037

STATE v. WHEELER.

Supreme Court of Tennessee.

January 28, 1913.

Appeal from Criminal Court, Fentress County; C. E. Snodgrass, Judge.

J. T. Wheeler was charged with destroying line marks on trees. From a judgment sustaining a motion to quash the indictment, the State appeals. Affirmed.

Assistant Attorney General Faw, for the State. Smith & Smith, of Jamestown, and John F. McNutt, of Rockwood, for appellee.

NEIL, J.

The state has appealed from a judgment sustaining a motion to quash an indictment charging that:

J. T. Wheeler, on the 1st day of March, 1911, did in Fentress county, Tennessee, "unlawfully, willfully, knowingly, corruptly, and feloniously cut out and destroy the line marks on the trees establishing and designating the line of the lands of the heirs of Ruth Doss, in said county and state, contrary to the statute, and against the peace and dignity of the state."

The indictment is based on Shannon's Code, § 6503, which reads:

"Whoever shall unlawfully, knowingly, willfully, and corruptly destroy the corner tree, stone, stake or other land or line mark of another's land shall be imprisoned in the penitentiary not less than two nor more than five years."

By subsection 12 of section 6496 of Shannon's Code it was declared a misdemeanor "to maliciously take down, remove, or injure, any monument erected, or any tree marked as the boundary of the state, or any county or civil division thereof, or of any tract of land, city or town lot, or to destroy, deface, or alter the marks of any such monument or tree, except a corner tree made for the purpose of designating such boundary." The state disclaimed in the trial court, and in this court, any purpose to proceed under this subsection. Its contention is that the indictment is good under section 6503, or not good at all. The defendant takes the same position.

The motion to quash made the point that no offense was charged under section 6503.

The state contends that the section covers an injury to a landmark on a line between corners; the defendant, that it applies only to injuries to a landmark indicating a corner.

For convenience of reference we have italicized certain words in section 6503. These words did not appear in the corresponding section (4654) of the Code of 1858, but were added by an amendment to that section made by chapter 57 of the Acts of 1867-68.

Subsection 12 of section 6496 is the same as subsection 12 of section 4652 of the Code of 1858, that subsection having never been amended.

As the respective corresponding provisions stood in the Code of 1858 it was the purpose of the Legislature to mark a distinction between injuries to a corner, and injuries to a line between corners, making the former felonies, the latter misdemeanors. The General Assembly was careful to place this point beyond doubt, by an express exclusion of corner trees in the last clause of the subsection.

The act of 1867-68 in its caption and body purported to amend only section 4654 of the Code of 1858, leaving untouched, apparently, the provisions of the subsection above referred to. In view of this fact, the subsection must remain unaffected, unless there is a necessary repugnancy between its provisions and the words added to section 4654.

There is no such repugnancy. The...