41 S.W. 759 | Tex. Crim. App. | 1895
Lead Opinion
This appeal is prosecuted from a conviction had upon an information, and the record does not contain the affidavit required by article 431 of the Code of Criminal Procedure of 1895. This affidavit is a prerequisite to the validity of a prosecution by information, and such complaint for affidavit must be contained in the record on appeal. Wills. Crim. Stats., sec. 1999, and authorities there collated. The judgment is reversed, and the prosecution is dismissed.
Dismissed.
Addendum
At a former day of this term this cause was reversed and the prosecution ordered dismissed because the record did not contain the affidavit upon which the information was predicated. On a motion for rehearing, it is now made to appear that such affidavit was filed and did form the basis of the information in the trial court, and the record is now complete in this respect. The motion for rehearing is granted, and the appeal is reinstated.
Addendum
Appellant was convicted for killing a wild deer between the 20th day of January, 1894, and the 1st day of August of said year. The information charges that the deer was killed on the 7th day of February, 1894.
The judgment in this case was at a previous term of this court reversed, and the prosecution ordered dismissed, because the record failed to incorporate the complaint which formed the basis of the information. On motion for rehearing the record was perfected, so as to cover that defect, and it is now before us for adjudication upon the merits of the questions involved in the appeal. The prosecution in this case was under the Act of 1881, as amended by various acts up to and including the Act of 1893. The Act of 1879 went into the Penal Code, and was regularly codified by appropriate articles, and numbered from article 423 to article 430a, inclusive. Article 426 made it a penal offense to knowingly kill any female deer in this Sate in the months of March, April, May, June, or July of any year. Article 430a contained the counties exempt from the provisions of said act, and contained Nacogdoches County. The Act of 1881 was a comprehensive act, and proposed to cover and repeal the entire Act *478 of 1879. The caption or title of said act is as follows: "An Act to amend articles 423, 424, 425, 426, 427, 428, 429, and 430a, and to create article 420 1/2, and to repeal article 430 of chapter 5 of title 13 of the Penal Code of the Revised Statutes, for the protection of fish and game." The enacting section is as follows: "Section 1. Be it enacted by the Legislature of the State of Texas, that articles 423, 424, 425, 426, 427, 428, 429, and 430a of chapter 5, title 13, be so amended to read as follows, and article 426 1/2 be enacted to read hereafter as follows: [Then follow the various articles of said act.]" Article 426 is amended so as to make the killing of any wild deer in the period of time embraced between the 1st of December in any year and the 1st of June of the next year a misdemeanor, punishable by fine, etc. See Acts 1881, p. 28. All of the subsequent legislation on the subject is based upon and relates to the Act of 1881, which was amendatory of the articles of the Penal Code. In 1883 the Legislature amended article 426. By said amendment the time in which the killing of wild deer was inhibited was changed so as to make the killing of said animals an offense if committed between the 20th day of January and the 1st of August in each year. See Laws 1883, p. 79. Said article, after its enactment, took the place of article 426 of the original act, and stood for the same. Article 430 of the Act of 1881, as stated before, exempted Nacogdoches County. This article was amended in 1883, and by its provisions Nacogdoches County was exempted from the provisions of article 426. Laws 1883, p. 115. This article 430 was again amended, in 1887. This amendment likewise exempted, with a list of other counties, Nacogdoches County. See Laws 20th Leg., p. 117. Article 430 was amended in 1889, and Nacogdoches County was exempted in this amendment. See Laws 21st Leg., p. 34. In 1893 the Legislature again amended article 430 of the Act of March 15, 1881, Laws 23d Leg., p. 45, and by this amendment Nacogdoches County was not excepted in the list of those counties exempted from the provisions of article 426 of the Penal Code.
It is contended by counsel for appellant that Nacogdoches County stands exempted from the operation of article 426, which prohibits the killing of wild deer, by enactments amendatory of article 430, antedating the amendment of 1893; that is, as we understand, it is contended that inasmuch as the Legislature had previously exempted Nacogdoches County from the provisions of article 426, in amending article 430, in 1893, it was not necessary to name Nacodoches County. The Constitution (article 3, section 36) requires that "no law shall be revived or amended by reference to its title, but in such case the act revived or the section or sections amended shall be re-enacted and published at length." It would appear by reference to the various amendments of article 430 that the Legislature has followed the above article of our Constitution. The section in question, each time it has been re-enacted, has been under the appropriate caption or title referring to the various articles of the Code and preceding amendments, and said article has been re-enacted — that is, the counties contained in said article have been relisted; this article being the article *479
exempting certain named counties from the operation of said article 426. Article 426 is a general law, applicable to every portion of the State. Arcle 430 is the article exempting the counties therein named from the operation of said article 426. When the Act of 1893 was passed, amending article 430, it took the place of all preceding amendments on the subject, and was a substitute for that article of the Code in full, and all preceding acts or amendments were thereby repealed. It is well settled, under all the authorities of which we have any knowledge, that subsequent statutes revising the subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former to the extent to which its provisions are revised and supplied (see Rogers v. Watrous,
Affirmed.
1. In deciding this case the court seems to have overlooked article 430a entirely. This article exempts Nacogdoches County from the provisions of article 426 of the Penal Code, which makes it a misdemeanor to kill wild deer, and it has never been repealed, modified, or changed by any act of the Legislature. See Acts of 1879, p. 65, where that article was originally adopted.
2. The Act of 1893, page 45, on which this court based its opinion, amended article 430, Penal Code, and did not pretend to amend or repeal article 430a. The Act of 1881, while proposing in its enacting clause to amend article 430a, never did so at all. It was not repealed, amended, or re-enacted, and the declaration in the enacting clause that article 430a was amended could not have that effect, because the Constitution prohibits it. See section 36, article 3, of the Constitution, which provides that no law shall be revised or amended by reference to its title, but that in such cases the act revised and section or sections amended shall be published at length.
Upon these points we ask the court's opinion, after a careful review of the several statutes, which we contend will show that article 430a is intact and that Nacogdoches County is not embraced within the provisions of article 426 except by mere implication.
Addendum
Appellant was convicted under article 426 of the old Penal Code, being article 514 of the new Penal Code, for the unlawful killing of wild deer between the 20th of January and the 1st of August. This case was affirmed at the Austin term, 1897, but appellant filed a motion for rehearing.
The grounds of the motion for rehearing are to the effect that, in 1879, Nacogdoches County, together with other counties, was exempted by virtue of article 430a of the Penal Code (which was an article amendatory of said Code, and passed at the same session of the Legislature that the Penal Code was adopted), the contention of appellant being that article 430a has never been repealed. We quote from appellant's own language on this subject, as follows: "In deciding this case, the court seems to have overlooked article 430a entirely. This article exempts Nacogdoches County from the provisions of article 426 of the Penal Code, which makes it a misdemeanor to kill wild deer; and it has never been repealed, modified, or changed by any act of the Legislature. See Acts 1879, p. 63, where that article was originally adopted." The Act of 1893 (page 45), on which this court bases its opinion, amended article 430, Penal Code, and did not pretend to amend or repeal article 430a. The Act of 1881, while proposing in its enacting clause to amend article 430a, never did so at all. It was not repealed, amended, or re-enacted, and the declaration in the enacting clause that article 430a was amended could not have that *481 effect, because the Constitution prohibits it. See section 36, article 3, of the Constitution, which provides that no law shall be revised or amended by reference to its title, but that in such case the act revised and section or sections amended shall be published at length. Now, as stated in the original opinion, article 430a was passed by the Legislature in 1879, and was an amendment to the Penal Code, which was adopted at that session of the Legislature. By reference to the Penal Code passed in 1879, it appears that article 430 relates to aquatic fowls, and is as follows: "Art. 430. Aquatic fowls, wild turkeys, and wild pigeons are not included within the provisions of the preceding article." Then follows article 430a, which is the article exempting certain counties from the operation of certain of the preceding articles of said chapter 5. In 1881 this entire chapter came before the Legislature for revision. The act is entitled "An Act to amend articles 423, 424, 425, 426, 427, 428, 429, and 430a, and to create article 426 1/2, and to repeal article 430, of chapter 5, title 13, of the Penal Code of the Revised Statutes, for the protection of fish and game." It will be noted that every section or article of said chapter in the Penal Code is re-enacted, some of them with amendments, except article 430, relating to aquatic fowls, etc., which is entirely omitted, effectually repealing said article 430; and article 426 1/2 is added to the act, as suggested by the caption. The entire subject matter of article 430a is re-enacted, but said article finds its way into the act as article 430, and not 430a. The original article 430 having been repealed, its number, 430, is given to the revised article which was formerly 430a. As we understand it, the complaint is not that the Legislature failed to re-enact the subject matter, and publish it at length as revised, but that they failed to retain the number 430a of said article in its revision. Now, we are not aware of any requirement of the Constitution that would constrain the Legislature to retain the number of said article so revised. The mandate of the Constitution in this regard is simply that "no law shall be revived or amended by reference to its title, but in such case the act revived or the section or sections amended shall be re-enacted and published at length." The amendment in this case was not by its title alone, but the subject matter proposed to be revived and amended, contained in article 430a, was all brought forward and re-enacted and published at length. When this was done the Legislature appears to have given the number of the article 430, and not 430a, as originally contained in the act as amended. The Legislature had at the same time repealed article 430; and said article, with reference to aquatic fowls, no longer existing, it was entirely competent for them to bring said article forward, and give it the number of the former repealed article. This article 430 in the Act of 1881, thus being made the article exempting counties from the operation of certain provisions of the Code in question, instead of the former number, 430a, is treated as the exempting article in all subsequent legislation on the subject. See Act 1883, p. 115; Act 1887, p. 117; Act 1889, p. 34; *482 Act 1893, p. 45. In all these acts, except the last, Nacogdoches County is mentioned in article 430 as one of the counties exempted from the operation of article 426; thus further manifesting the legislative intent and purpose to treat this article as the clause exempting counties therein named from the provisions of said act. In 1893 this article 430, covering the same subject matter — that is, naming the counties exempted from certain provisions of the act — is amended and re-enacted; and from this re-enactment Nacogdoches County is omitted from the list of those exempted from the provisions of article 426 of the act, thus leaving it subject to the provisions of said article as effectually as if it had been placed subject to said article by affirmative or positive enactment.
In the view insisted on by appellant's counsel, the clause of the Constitution should read that every amended law should not only contain the act revived or section amended but should retain its numbering. We do not believe such contention to be a sound construction of the section of the article in question. On the contrary, we believe it to be entirely legitimate and proper for the Legislature, in amending an article or section of a law, to bring it forward, and publish it at length as amended, and then to give it such numbering as it may choose. Of course, it would be best to follow the numbering contained in the particular chapter; and in this instance, as there no longer existed article 430, because this was repealed, article 430a was amended and given the sequent number 430. Nor do we deem it at all necessary that the Legislature should in the act itself, or in the caption thereof, have set forth that this amendment was to repeal article 430, and to amend article 430a, and then, after such amendment and repeal, to change the numbering of the article 430a to article 430; yet such seems to be the contention of appellant. In our opinion, such contention is without either reason or authority to support it.
There being no other ground for a rehearing presented, the motion is accordingly overruled.
Motion overruled.
