The State v. Brotzer

• Decision Date: 13 November 1912
• Parties: THE STATE v. OTTO BROTZER, Appellant
• Court: Missouri Supreme Court

150 S.W. 1078

245 Mo. 499

THE STATE v. OTTO BROTZER, Appellant

Supreme Court of Missouri, Second Division

November 13, 1912

Appeal from Livingston Circuit Court. -- Hon. Arch B. Davis, Judge.

Reversed and remanded.

S. L Sheetz and Paul D. Kitt for appellant.

(1) The court erred in overruling defendant's motion to quash the information and demurrer thereto. The information was based on Sec. 1957, R. S. 1899, Sec. 4597, R. S. 1909, making the offense a felony. This section was repealed by implication by the original enactment, which is Sec. 1261, R. S. 1899, now Sec. 3336, R. S. 1909, prior to the time that the alleged offenses were charged to have been committed, the latter section having been passed last by the Legislature and making the offense a misdemeanor. St. Louis v. Alexander, 23 Mo. 509; Cape Girardeau v. Riley, 52 Mo. 428; State ex rel. v. Heidorn, 74 Mo. 411; Pool v Brown, 98 Mo. 680; Dart v. Bagley, 110 Mo. 52; Paddock v. Railroad, 155 Mo. 535; Kern v. Legion of Honor, 167 Mo. 483; Yall v. Gillham, 187 Mo 405; Brannock v. Railroad, 200 Mo. 568; Strottman v. Railroad, 211 Mo. 257; Gazollo v. McCann, 63 Mo.App. 419; State ex rel. v. Woodson, 128 Mo. 512; State ex rel. v. Shields, 230 Mo. 91; Miller v. County, 204 Mo. 198; Tinson v. Coal & Coke Co., 220 Mo. 592; State v. Taylor, 186 Mo. 608; State ex rel. v. Wardell, 153 Mo. 325; Bird v. Sellers, 122 Mo. 31. (2) Instruction 5 on behalf of the State allowed the jury to find the defendant guilty of the offense charged to have been committed on the 8th day of February, 1910. This was error. The court should have excepted in this instruction the offense alleged to have been committed on February 8, 1910. The second count of the information charged the commission of this offense on February 8, 1910; when the State entered into the nolle prosequi after the defendant had been put in jeopardy by the empaneling of the jury and the opening statement of the prosecuting attorney, defendant was thereby acquitted of the offense on February 8, 1910. And so the court should have directed the jury. Kelley Crim. Law & Practice, Secs. 220-230; State v. Patterson, 116 Mo. 505; State v. Snyder, 98 Mo. 561; 1 Bishop's New Crim. Law, Secs. 1013, 1014 (4 and 5), 1015 and 1016. (a) This instruction is also erroneous in that in the last paragraph it defines what the terms injure, molest and destroy mean, when there is no such definition given by the statute. And defendant contends that the instruction should have been confined to the wording of the statute itself. The property should have sustained some damage which is appreciable before an offense is committed. Inconvenience will not suffice to constitute this offense. Sec. 4597, R. S. 1909; Pollet v. State, 115 Ga. 234; Patterson v. State, 41 Tex. Cr. 412. "Molest" means some actual damage done to property. Gilbert v. Wiman, 1 N.Y. 550, 49 Am. Dec. 359. (b) This instruction is further erroneous in that it did not require the jury to find the defendant, in wrapping and twisting the wire in question over another wire, did so willfully and maliciously as the statute requires it should be done. State v. McClain, 92 Mo.App. 463. (3) It was error for the court to refuse instructions 1, 2, 3, and 9 asked by the defendant. In every offense of this nature, malice is essential before the defendant can be found guilty. State v. Prather, 130 Mo.App. 348. (4) Defendant's instruction 4 should have been given because the evidence relied upon by the State for conviction covered only the offense alleged to have been committed on February 8, 1910, while at the same time the record shows he had been acquitted of that same offense upon the nolle by the State of the second count of the information. The evidence in this case shows only one offense to have been committed, if at all, by the defendant; shows only one act and that was the act or offense of February 8. State v. Railroad, 219 Mo. 156; State v. Lee, 228 Mo. 494; State v. Palmberg, 199 Mo. 233; State v. Wilson, 39 Mo.App. 184.

Elliott M. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.

(1) The repeal of statutes by implication is not favored by the courts. State v. Bishop, 41 Mo. 16; Road District v. Huber, 212 Mo. 551. "The presumption is always against the intention to repeal where express terms are not used." 36 Cyc. 1071. "To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed." 36 Cyc. 1071. At the time appellant contends that the "corporation section" repealed the "criminal section," there was no repugnancy or conflict between these two sections. Then, they were practically identical. Both provided that persons who tampered with the property of telegraph companies were criminally liable. The "criminal section" used the terms "willfully and maliciously," and the "corporation section" read "unlawfully and intentionally." There is no substantial difference in these terms. State v. McKee, 126 Mo.App. 530. Both sections provided for punishment by fine and by imprisonment in the penitentiary. There was certainly no such irreconcilable repugnancy as is deemed necessary before a statute may be repealed by implication. (2) The "corporation section" was repealed in effect by the act of the Legislature, in Laws 1901, p. 129, and the "criminal section" by that act amended. The Court of Appeals has held that one of these statutes was repealed by the other, as they were at that time essentially incongruous, and the repealing statute is that which last received the attention of the Legislature. Therefore, that the "corporation section" was repealed by the "criminal section" which was last amended by the Legislature in 1901. State v. McKee, 126 Mo.App. 531. Other rules of statutory construction could be invoked to show that the "criminal section" was the repealing section and that it was the apparent intention of the Legislature that the "criminal section" should stand and the "corporation section" be repealed. It has been held that an amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its stead. Kamerick v. Castle, 21 Mo.App. 587; Epperson v. Insurance Co., 90 Mo.App. 432. (3) This is a case in which the averment in the information of the precise time of the commission of the offense is not material. The information charged in three counts the commission of three offenses. Two counts were dismissed by nolle prosequi. One offense still remained, and in this case, which is not one where time is of the essence of the offense, the proof could have shown that the offense occurred at any time within three years before the date of the filing of the information and a conviction must stand, under the Statute of Jeofails. Suppose the proof does show that the offense charged in the count on which the case was tried occurred on February 8, still that does not necessarily lead to the conclusion that the offense proved was the same act as the alleged offense set up in the count which was dismissed. One or two or half a dozen offenses may have occurred on the same day. Time was not of the essence of the offense charged and counsel cannot make time alone show the identity of this offense. Appellant was charged to have comitted an offense "on or about the third day of February, 1910," and the overwhelming proof submitted by the State shows that he committed the offense as charged on one of the early days of February, 1910. The Statute of Jeofails, Sec. 5115, R. S. 1909, cures all variance between the time charged by the information and that shown by the proof.

KENNISH, J. Brown, P. J., and Ferriss, J., concur.

OPINION

KENNISH, J.

At the April term, 1911, of the circuit court of Livingston county, appellant was tried upon an information based upon Sec. 4597, R. S. 1909, charging him with the felony of willfully and maliciously injuring, molesting and destroying the lines and wires of the Bedford-Wheeling Telephone Company. He was found guilty, his punishment assessed at a fine of one hundred dollars, and from the judgment entered on the verdict, he has appealed to this court.

The information was in three counts, which were substantially identical, except as to the dates on which the offenses were alleged to have been committed. The first count charged the commission of the offense on February 3, 1910, the second on February 8, 1910, and the third on February 10, 1910.

After the jury had been impaneled and sworn to try the cause, the defendant moved that the State be required to elect as to the count upon which the trial should proceed. This motion was sustained by the court, and the prosecuting attorney elected to stand upon the first count, being the count which charged the offense to have been committed on February 3, 1910, and entered a nolle prosequi as to each of the remaining counts.

The testimony for the State tended to prove the following facts:

At the date of the alleged offense, and for some time prior thereto the Bedford-Wheeling Telephone Company, an unincorporated association, owned the telephone lines and exchanges in the towns of Bedford and Wheeling, in Livingston county, and also a telephone line between the two towns. On the telephone poles of the company between the towns were two wires. One of them was used by the company for the transmission of messages between the towns, and the other belonged to and was used by the defendant and other joint owners of the Bedford-Wheeling Telephone Company as a private party wire. In the latter part of December, 1909, the owners of the Bedford-Wheeling Telephone Company held a...