Wilcox v. State

• Decision Date: 31 December 1871
• Citation: Wilcox v. State, 50 Tenn. 110 (Tenn. 1871)
• Parties: Granville Wilcox v. The State.
• Court: Tennessee Supreme Court

50 Tenn. 110

Granville Wilcox

v.The State.

Supreme Court of Tennessee.

December Term, 1871.

FROM MONTGOMERY.

Speci??l Criminal Court, THOS. W. KING, J., presiding.

J. M. Quarles, for the prisoner, insisted, that there was no legally constituted grand jury, the venire being returnable to the second Monday in September, 1870, when by law the court is to be held on the 1st Wednesday of each month. That the Act of 1865, c. 5, created in this respect, two offenses, one to “take,” the other to “steal,” and the indictment could not join the two: Blackburn v. State, 2 Cold., 235;Whiteside v. State, 4 Cold., 175. To take involves no asportation, to steal does. Error to admit proof of distinct felony: Kinchelow v. State, 5 Hum., 9;Stone v. State, 4 Hum., 27;Shaw v. State, 3 Sneed, 86;Lancaster v. State, 3 Cold., 339. That the Criminal Court at Clarksville is not a constitutional court: Acts of 1870, p. 175; Constitutions of 1834 and 1870, Art. 6, Sec. 1, 1870, Art. 6, Sec. 1.

Attorney General HEISKELL, for the State.

NELSON, J., delivered the opinion of the Court.

The plaintiff in error was indicted in the Criminal Court of Montgomery county, for feloniously taking and carrying away one large bay horse mule, the property of Elijah Lockert. He was convicted on his trial, and sentenced to thirteen years confinement, at hard labor, in the penitentiary; and it was also adjudged that he be rendered infamous and disqualified to give evidence, or exercise the elective franchise, or hold any office under this State, and that he pay the costs of this prosecution, &c.

The indictment is founded on the Act of 17th May, 1865, c. 5, sec. 1, which provides “that whoever shall take, or steal, any horse, mule or ass, shall, on conviction thereof, suffer death by hanging; provided, the jury before whom the case is tried shall, if they think proper, commute the punishment to imprisonment in the penitentiary for the period of not less than ten nor more than twenty-one years.”

The 4th section contains a proviso “that nothing in this Act contained shall be construed as repealing the laws now in force for the punishing of the offenses mentioned in this Act; but all persons who have heretofore committed any of the offenses mentioned in this Act, shall be tried under the existing laws, and, if convicted, shall be punished as now prescribed by law.” The offense of horse stealing, as then prescribed by law, is thus defined and punished: “Whoever shall feloniously take, or steal, any horse, mule or ass, shall be imprisoned in the Penitentiary not less than three nor more than ten years.” Code, 4686.

Applying well known rules of construction to these statutes, we hold that the first section of the Act of 1865 does repeal the Code, 4686, so far as any offenses, within the purview of the statutes, have been committed since 17th May, 1865; but the intention of the Legislature, in the said fourth section, was, to continue the old law in force as to all offenses committed previous to the 17th May, 1865, and to allow trial, conviction and punishment under it.

The first section of the act of 1865 is inconsistent with the section quoted from the Code, and therefore repeals it. See Roberts v. The State, 2 Tenn. R., 425, marg.; Cooper's Overton, 769, foot p. The proviso in the 4th section, “that nothing in this act shall be so construed as repealing the laws now in force,” &c., must be taken in connection with what follows in the proviso, and as meaning that the previous laws are to remain in force as to offenses committed before 17th May, 1865.^a1 Any other construction would make the proviso so repugnant to the first section as utterly to destroy it, and would defeat the Legislative will; and the first section and the proviso should, with the view of giving effect to the will of the Legislature, be so construed as that both provisions may stand. In Bennett v. The State, 2 Yer., 73, it was admitted that affirmative statutes often repeal each other by implication; as was effected by the first section of the act of 1865; but it is correctly said in the same case that “when it is manifestly the intention of the Legislature that a subsequent act of Assembly shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words, taken strictly and grammatically, would repeal the former.” This rule applies with peculiar force to the proviso in the third section, which, construed literally, would defeat the intention of the Legislature, that intention being two-fold: first, to raise the grade of the offense of horse stealing to a capital crime; and, secondly, to continue the former statute in force as to all offenses committed previous to its passage.

We are unable to perceive that the act of July 6, 1870, c. 115, p. 175, is in conflict with the Constitution of 1834 or 1870. Article 6, sec. 1, of each Constitution, authorizes the Legislature from time to time, to ordain and establish inferior courts; and we are not satisfied that the power to establish a criminal court was not rightfully exercised in this, as it had been previously in various similar cases.^a1The objection that the indictment is double, is untenable. Although the language of the statute is, “take or steal any horse, mule,” &c., the offense is one and the same: See 1 Bish. Cr. Law, 4th Ed., sec. 803; State v. Arnold Ailey, 50 Tenn. 8. It is difficult to imagine how any one could feloniously take a horse without stealing him, or feloniously steal without taking. The indictment would have been more accurate, perhaps, if it had charged, according to the old form, that the defendant feloniously stole, took and rode, drove or led the mule away, instead of charging that he carried him; but this is doubtless good under the Code.

In the progress of Stephen Cole's examination as a witness, the record states as follows, viz:

“Question by State's Attorney.--Did you have a mule stolen from you about this time? Objected to by defendant's counsel, and the objection sustained.

Question by same.--Did you lose a mule about the time this mule was stolen? the witness having stated the exact date. This question was objected to by defendant as irrelevant and prejudicial. The Court permitted the State to prove that Stephen Cole lost a mule about that time, which Stephen Cole did prove, in order to fix the time this one was stolen. In answer to defendant's counsel, witness stated that he was prosecuting defendant for stealing his mule, on an indictment now pending in this court. The witness stated: My mule was first missed on Saturday morning; I looked for it to haul wood with, and could not find it,” &c., &c.

No rule of criminal law is better established than that the evidence shall be confined to the case in issue; but when guilty knowledge, in its technical sense, is part of the charge contained in the indictment, as in cases of receiving goods, knowing them to be stolen; or passing counterfeit money, knowing it to be counterfeit, and the like, evidence of other acts, similar to those charged in the indictment, is admissible to establish this most important allegation in the indictment. In this case, evidence as to the loss of another mule by a person not named in the indictment, and at the same time as the mule therein mentioned, was calculated to prejudice the defense. Time could have been proved without referring to another criminal charge. The cross-examination shows that, when the witness spoke of the loss of his mule, he referred to another felony of which the defendant stood accused, and the inadmissibility of the evidence was thus clearly manifested, and falls within the general principles stated in Lancaster & Smith v. The State, 3...