25 Tex. 307 | Tex. | 1860
We think there is no error in this case. Because—1st. It is within the power of the legislature to repeal a definite portion of a section or article in an act, without the reenactment of the section or article, omitting the part repealed. (Commercial Bank of Natchez v. Markham, 3 La. Annual Rep., 698.)
2d. The repealing clause of 1858 uses the words “ provisions to Art. 411” of the Penal Code, by mistake, for the words “proviso to” said article. That there is a mistake in the language used is most obvious. There is but one provision in the article, except that contained in the.proviso, and that is to dispense with the necessity of proving that money or valuable things were bet upon the game played. It did hardly design to repeal the whole
If we must resort to construction then, what object could have been intended to have been obtained by repealing the provision of the 411th Article ? The two preceding sections would mean the same thing and require the same proof with or without that provision. The offence created by them was playing at a game with cards in certain places, not betting on such game. It would not have been necessary to have proved that money or other valuable articles were bet upon such game, had this provision of Art. 411 never been inserted. It was the declaration of a legal consequence, and it was inserted only for the purpose of attaching to it in the shape of a proviso, a modification or qualification beneficial to the defendant. Its recital was made- the principal to which the proviso was the incident. The repeal of this recital would not alter the legal consequence flowing from the two preceding Articles to which it related. The proof of the betting of money or other valuable articles would still have been unnecessary. We should not readily suppose that the legislature intended to do a thing so use-less and unmeaning. The proviso furnished a fruitful source of evasion and perplexity in the execution of the law prohibiting gaming. It contained a new provision in our law on the subject of gaming. The body of the Article 411 did not. An important and beneficial result might be anticipated from the repeal of the proviso, and none whatever from the repeal of the body of the article. This consideration, it is believed, can leave but little doubt but that they intended to repeal the proviso and leave the body of the Article standing in force as an express declaration of a legal consequence. The only purpose to be accomplished by leaving it standing,, was to prevent the misconstruction which might possibly have arisen from its repeal, as to the necessity of the proof of betting.
The language used, “provisions to” adds greatly to the force of this conclusion. The appropriate mode of expression would have been “ the provision of” or “Art. 411, except the proviso" had it been intended to repeal the body of the article and leave
Judgment affirmed.
