Steele v. State, 61 Ala. 213

Steele v. State

61 Ala. 213 | Ala. | 1878

STONE, J.

The following two provisions are embodied in the Code of 1876: Section 4296. “ Any person who is guilty of murder in the second degree must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than ten years, at the discretion ■of the jury.” Section 4450, after declaring the different modes of punishment, contains this clause: “In all cases in which the period of imprisonment, or hard labor, is more than two years, the sentence must be to the penitentiary.” These two clauses are incompatible with each other, and can not both be enforced. We know as fact that section 4296 of .the Code is but a copy of section 3654 of the Code of 1867, which is itself a copy of section 112 of Stone & Shepherd’s Penal Code, adopted February 23, 1866. — Pamph. Acts, 121» We know, too, that the clause of section 4450, Code of 1876, copied above, became law long after the Revised Code of 1867 was adopted, by force of the act “To provide for the punishment of persons convicted of crimes in certain cases,” approved March 7, 1876. — Pamph. Acts, 287. The Code of 1876 did not become operative and binding, until thirty days after the Governor’s proclamation. The proclamation was issued November 9th, 1877, and hence that compilation became the law of the land December 9th, 1877. From the date of the statute, March 7th, 1876, which declared that when “the period of imprisonment or hard labor is more than two years, the sentence must be to the penitentiary,” till the day the Code went into effect, December 9th, 1877, there could be no sentence to hard labor for the county for a period longer than two years. The act of March 7, 1876, had, by necessary implication, repealed all provisions of our penal code, which authorized punishment by hard labor for the county, for a longer term than two years. This repeal ■changed a great many sections of the Code, and among the rest, it struck from section 3654 of the Revised Code, de*218daring the punishment for murder in the second degree, the words, “ or sentenced to hard labor for the county.” So that, for offenses committed during that interval, of the higher grades, and requiring imprisonment extending beyond two years, the sentence must of necessity have been to imprisonment in the penitentiary. What effect has the incorporation of both these provisions in the Code? We have seen they are repugnant, and can not both stand. Which shall yield to the other ? It is our duty to carry into effect the intention of the legislature, to be gathered from their language. In Thompson v. The State, 20 Ala. 54, this court said, “ the inartificial manner in which many of our statutes are framed, the inaptness of expressions frequently used, and the want of perspicuity and precision not unfrequently met with, often require the court to look less at tjje letter or words of the statute, than at the context, the subject-matter, the consequences and effects, and the reason and spirit of the law, in endeavoring to arrive at the will of the law-giver.” And in Smith v. Smith, 19 Wise, 522, and Bishop v. Schneider, 46 Mo. 472, the several courts considered the effect of abridging and embodying statutes in a code, and consulted the original statutes, their date, and even their judicial interpretation, in arriving at a proper construction of the legislative intent. In each case, though the statutes had been changed in phraseology and in arrangement, they gave effect to them as framed by the legislature. As we have said, the two sections of the Code are incompatible, and we can not give effect to both. We think we carry out the legislative will by giving full effect to section 4450 of the Code, and holding, which we do, that the words, “or sentenced to hard labor for the county,” are stricken out of all statutes which provide, as a punishment, imprisonment or hard labor for a period longer than two years.' It results that the conviction in this cause must be reversed.

We do not think the Circuit Court erred in its several rulings on the introduction of evidence. The fact that Forniss, the manager, gave the defendant instructions to take plank from the piazza of the deceased, could not have shed any light on the circumstances of the killing, or the motive- or animus of the deed. If all or any of the testimony bearing on this question can be relied on, the defendant did not inform deceased that be had been instructed by their common superintendent to take the plank. There was nothing in the language of the deceased, as testified to, to give offense, unless the tone or manner was insulting. Of this the record says *219nothing. The reply of the accused was rude, and calculated to irritate. If, instead of the remark, “ I would have torn you up if you had been there,” the deceased had been informed that the planks were taken in pursuance of the orders of Forniss, the superintendent, it is not likely that further altercation would have ensued. But, according to the testimony, the parties separated after this, and the fatal blow was struck about one hour later. Only one witness saw the blow inflicted. Others testify to having heard it. No one speaks of mutual blows, or of any altercation or words at that time. "We can not perceive any tendency in the testimony rejected, uncoinmunicated as if was to the deceased, calculated to influence the conduct of the deceased, or to justify or mitigate the act charged against the defendant.

That defendant, an hour or more after the blow was struck, made complaint, or complained of injury to his person, he had no right to prove in his own defense. The customary exclamations of present pain or suffering, as a general rule, are indej^endent and primary evidence. The offer in this case does not fall within the rule. Nor can we perceive any principle, on which defendant’s complaint to the justice, or affidavit made, could be made evidence for him. Reversed and remanded, but the prisoner will remain in custody until legally discharged.