Stevens v. State

• Decision Date: 04 June 1913
• Citation: 159 S.W. 505
• Parties: STEVENS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 505

159 S.W. 505

STEVENS v. STATE.

Court of Criminal Appeals of Texas.

June 4, 1913.

Rehearing Denied June 27, 1913.

Dissenting Opinion September 11, 1913.

Appeal from District Court, Polk County; L. B. Hightower, Judge.

George Stevens was convicted of the crime of keeping and exhibiting, for the purpose of gaming, a gaming table and bank, and he appeals. Affirmed.

F. Campbell, of Livingston, and Geo. G. Clough and John Darrouzet, both of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted under an indictment charging that he did directly and as the agent and employé of another keep and exhibit, for the purpose of gaming, a gaming table and bank.

A motion was made to quash the indictment and in arrest of judgment. It is earnestly insisted that the indictment is duplicitous and repugnant in that it sought to charge two offenses in one count. If the indictment charged or sought to charge two offenses, the contention would be well taken, but it seeks to charge only one offense, the keeping and exhibiting a gaming table and bank. It is true that it charged that he did so directly and as agent and employé of another, yet that is merely the commission of the offense in either one or the other of the ways denounced by the Code, and under all of our decisions it has been held that where there are several ways in the statute by which an offense may be committed, and they are embraced in the same general definition and are punishable in the same manner and to the same extent, they are not distinct offenses and may be charged conjunctively in the same count in the indictment. Morris v. State, 57 Tex. Cr. R. 163, 121 S. W. 1112; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; Medina v. State, 49 S. W. 380; Reum v. State, 49 Tex. Cr. R. 128, 90 S. W. 1109; Holman v. State, 90 S. W. 174; Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Goodwin v. State, 158 S. W. 274, this day decided and cases cited. The opinions in these cases pass on every ground raised by appellant, and it is shown that in an unbroken line of decisions this court has held that an indictment clothed in the language that this one is is neither duplicitous nor repugnant.

The next contention of appellant is that as article 551 of the Penal Code makes it a misdemeanor to keep and exhibit a gaming table or bank, punishable by fine and imprisonment in the county jail, and article 558 makes it a felony to keep and exhibit a gaming table or bank, punishable by imprisonment in the penitentiary, we have no statute punishing a man for keeping and exhibiting a gaming table and bank; that the Revised Code naming two penalties for the same act renders both articles void. In the case of Robertson v. State, 159 S. W. 713, recently decided by this court, we held adversely to appellant's contention, and it seems useless to again review the authorities.

However, appellant cites one case (Central of Georgia Railroad v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518) and contends that it sustains his contention, but we do not think so. In that case it was contended that an act of the Legislature, authorizing the railroad commission of that state to require railroads to erect depots, was invalid on certain grounds, among them the insufficiency of the caption. The court held it was not necessary to discuss that question, as, since the enactment of the law, the laws of Georgia had been codified, and the report of the commissioners, by an act of the Legislature, made the law of that state, and, even though the act was void when originally enacted, that by its re-enactment as a part of the Code it became the law, as none of the objections urged were applicable to the law when passed the second time as a part of the Code. That this was a re-enactment of the law and under such circumstances was a valid law. To this this court accedes, and it is in line with all our decisions, and the opinion in the Robertson Case is not in conflict therewith. That codifiers have any authority to add to, amend, omit, or write new statutes, none as we understand contend; it is when the Legislature enacts their work into law which gives to their work vitality and the force of law; and, when so enacted by the Legislature, that their work becomes law is not gainsaid by this court nor any respectable authority, so far as we have been able to ascertain. But the fact that a given provision is enacted as a part of a revision gives it no more force and effect than if enacted as a separate and distinct bill, and such provisions are subject to and should be construed as all other laws or provisions passed by the Legislature.

That article 558, when it was enacted by the Legislature in 1907 (as article 388a), necessarily repealed article 551 (old number 382, which had been passed in 1887) we do not think any one would question. So, prior to the adoption of the report of the codifiers in 1911, there are none, we think, who will contend but what the felony statute was the law of this state from its enactment in 1907 until at least the adoption of the codification in 1911. But, as both articles were brought forward in the codification and reenacted, it is contended that thereby the Acts of 1887, art. 551, was revitalized, and, being in conflict with the Acts of 1907, art. 558, which was also re-enacted, the punishment thereby being rendered uncertain, both must fail, and it is contended we have no authority to go behind the act adopting the 1911 codification to gather the intent and purpose of the Legislature nor to aid us in arriving at the proper construction to be given these articles of the Code. Under all the decisions of this court, appellant's contention is unsound. Braun v. State, 40 Tex. Cr. R. 239, 49 S. W. 620; Runnels v. State, 45 Tex. Cr. R. 447, 77 S. W. 458; Ex parte Muckenfuss, 52 Tex. Cr. R. 473, 107 S. W. 1131; Chiles v. State, 1 Tex. App. 30. In those cases it is seen that this court has always held that when a revision has been adopted, and the meaning and intent is not made plain, this court may resort to the original act and be thus enabled to give correctly a proper construction to the provisions of the Revised Code, and in so doing we find that article 551 was repealed in 1907 when article 558 was adopted; and Mr. Sutherland on Statutory Construction says in section 161: "Where two statutes in pari materia, originally enacted at different periods of time, are subsequently incorporated in a revision and reenacted in substantially the same language, with the design to accomplish the purpose they were originally intended to produce, the times when they first took effect will be ascertained by the courts, and effect will be given to that which was the latest declaration of the will of the Legislature, if they are not harmonious." Thus it is seen that by this eminent law-writer the rule is said to be, not only may we look back to see when either or both the provisions were enacted and took effect, but that effect should be given to that which was the latest declaration of the will of the Legislature and this we think the law, and so held in the Robertson Case. Since the misdemeanor statute was enacted in 1887, and the felony statute was adopted 20 years later in 1907, it is made clear that it is the felony statute that is now in force in this state, and the bringing forward, by mistake, of the repealed provision did not revive it. For other authorities so holding, see Winn v. Jones, 6 Leigh (33 Va.) 74; Blackford v. Hurst, 26 Grat. (67 Va.) 206; United States v. Bowen, 100 U. S. 508, 25 L. Ed. 631; Vietor v. Arthur, 104 U. S. 498, 26 L. Ed. 633; Mobile Savings Bank v. Patty (D. C.) 16 Fed. 751.

But should all of the above cases be held to be erroneous, to which we do not agree but think the law correctly announced in the case of Robertson v. State, supra, still the felony statute, and not the misdemeanor statute, would be the law of this state. In the case of Chiles v. State, 1 Tex. App. 31, this court said: "The two acts, being passed at the same session of the Legislature, ought, if possible, to be construed together, so that both might stand as one embodiment of the legislative will. But it will be perceived that these two acts, though passed at the same session, cannot, by any known rule of construction, be so reconciled as that both may stand; and, in case there is such repugnance between the two as that one must give way, the rule is the last must stand as an expression of the will of the Legislature." When the Supreme Court had jurisdiction in criminal matters, in the case of Cain v. State, 20 Tex. 359, Judge Wheeler, speaking for the court, said: "The rule is that, in construction of acts of the same session, the whole must be taken and construed as one act, and, to make a latter provision repeal a former, there must be an express repeal or an irreconcilable repugnancy between them, and then the latter will control"—citing 3 Moore, 77; Sedgwick on Stat. & Const. Law, 410.

In a number of cases this rule has been approved (Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 767): "`The different sections or provisions of the same statute or Code should be so construed as to harmonize and give effect to each, but, if there is an irreconcilable conflict, the later in position prevails.' Lewis' Suth. on Stat. Const. (2d Ed.) § 268, p. 514, citing Ex parte Thomas, 113 Ala. 1, 21 South. 369; Hand v. Stapleton, 135 Ala. 156, 33 South. 689; Van Horn v. State, 46 Neb. 62, 64 N. W. 365; Omaha Real Est. & T. Co. v. Kragscow, 47 Neb. 592, 66 N. W. 658. And: `If a conflict exists between two statutes or provisions, the earlier in enactment or position is repealed by the later. "Leges posteriores priores contrarias abrogant." Where there is an irreconcilable conflict between different sections or parts of the same statute, the last words stand, and those which are in conflict with them, so far as there is a conflict, are...