State v. Green

87 Mo. 583 | Mo. | 1885

Norton, J.

This case is before us on the appeal of the state from the judgment of the criminal court of Lafayette county in sustaining a demurrer to the indictment preferred against defendant. The indictment contains two counts, in the first of which the defendant, as collector of Jackson county, is charged with obtaining money by false pretenses ; and in the second of which, defendant, as collector, is charged with obtaining money ■'“'by means and by use of a cheat, a deception, a false and fraudulent statement,- and a'false instrument and paper writing.” The first count is based on section 1335, Revised Statutes, and the second is based on section 1561, Revised Statutes. In both counts defendant is-charged “ with then and there being the duly elected, and qualified collector within and for Jackson county, and being then and there in the execution of the functions of collector of the revenue as aforesaid by collecting and' receiving the taxes levied and due upon the-taxable personal and real property being situated in Said county, for the various purposes for which the same was liable for the year 1881, and did then and. there feloniously and designedly obtain from W. 0. Duvall two hundred apd fifty-seven dollars • and sixty-three cents. ’ ’ The false pretense set out in the first count was'a tax receipt. The “cheat, deception, fraudulent statement, false instrument- and paper writing, ’ ’ charged in the second count as the means used to obtain the-money, are not specifically set out.

It is clear, wé think, from the indictment that the-defendant is proceeded against in both counts for having, as collector of the revenue, collected from Duvall as taxes the sum of two hundred and fifty-seven dollars- and sixty-three cents in excess of what was due and payable, and the only question which the demurrer presents is whether such an offence is to be prosecuted as a felony under section 1335, Revised Statutes, making it a felony to obtain money or- property, under.false pretenses, or under section 1651, Revised Statutes, making it a felony to obtain money or property by any trick or deception commonly called “the confidence game,” or whether such an offence is to be prosecuted as a misdemeanor under section 1487, Revised Statutes, which provides that every collector of the revenue who shall unlawfully collect taxes when none are due and shall wilfully or unlawfully exact or demand more than is-due shall on conviction be adjudged guilty of a misdemeanor. -

Section 1335, Revised Statutes, which makes it & felony for obtaining, money or property by false pretenses has been on the statutes of the state .in substantially the same form since 1825. In 1843 the. legislature-'first passed the act making it a misdemeanor to collect, exact or demand illegal taxes. • This act has remained the law ever since, and appears in the Revised Statutes-of 1879 as section 1487. Inasmuch as section 1487 specially applies to the offence of collecting taxes when hone are due, or exacting or demanding. more than is-due, making it a misdemeanor, is inconsistent with the-general law, section 1335, Revised Statutes, which makes the offence of obtaining money by false, pretenses- . a felony, section 1487 must govern in this case, it having been held as a proper canon of construction in the-case of State v. DeBar, 58 Mo. 395, that if a special provision applicable' to a particular object be inconsistent-with a general law the former will prevail.

Neither can the offence charged against defendant-be prosecuted tinder section 1561, which was-first enacted by the legislature in 1879, for the reason that it is a well settled rule of construction that a'later statute-which is general and affirmative does not abrogate a-former one which is particular, unless negative words-are used or the two acts are irreconcilably repugnant.Á statute can only be repealed, either by express provision or by necessary implication, and to justify a repeal by implication there should be such a repugnancy in the-Pew law as to lead to the conclusion that the later law abrogated or was intended to abrogate the former, Railroad Co. v. Cass Co., 53 Mo. 17; McVey v. McVey, 51 Mo. 406. That it was not the intention by section 1561 to abrogate section 1487 we think clear, but on -the-contrary it was intended by it to supply a ■ lack in the-law for the .punishment of obtaining money or property by' what was known and called “confidence games.” This, we think, is made manifest by the fourth section of the act of 1879 which declares that: “An emergency having arisen by reason that offences of this kind are of daily occurrence ■ within the borders of this state, and there being no provision of law covering the offences as ■stated in the above act by which the perpetrators can be ■brought to justice, it is hereby declared that this act •shall take effect and be in force from and after its passage. ” Acts 1879, p. 89.

We are of the opinion for the reasons given that the ^demurrer was properly sustained, and the judgment is hereby affirmed,

in which all concur, except Judge Henry, who dissents.