Dickinson v. State , 38 Tex. Crim. 472 ( 1895 )

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 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 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,8 Tex. 62; Cain v. State, 20 Tex. 355; Tunstall v. Wormley, 54 Tex. 476; Stirman v. State, 21 Tex. 734; Ex parte Valasquez, 26 Tex. 178 [26 Tex. 178]; Holden v. State, 1 Texas Crim. App., 225); and where the revised, statute, in and of itself, comprehends another subject, and creates a new, independent, and entire system respecting that subject mater, it is universally held to repeal and supersede all previous statutes and laws respecting the same subject matter (see Bryan v. Sundberg,5 Tex. 423; Stirman v. State, 21 Tex. 734 [21 Tex. 734]; Etter v. Railway, 2 Wills. Civ. Cas. Ct. App., sec. 58; Stebbins v. State, 22 Texas Crim. App., 32), that is, under the Constitution and the authorities referred to, article 430, as amended in 1893, took its place in the Code, and was all the law on the subject exempting counties from the provisions of article 426. This view is strengthened by a reference to the Act of 1893, for that shows that Nacogdoches County was not forgotten by the Legislature, for, as a part of article 430, it is provided that the counties of Bowie, Nacogdoches, Hill, and Bosque are hereby exempted from the provisions of articles 427-429. But there is no exemption of Nacogdoches County from the provisions of article 426. Applying the rule of "expressio unius, est exclusio alterius," this would manifest the intention of the Legislature to leave Nacogdoches County subject to the provisions of article 426. To further emphasize this construction, suppose that the Act of 1893 had simply in terms, not by implication, repealed article 430, would it be seriously contended that any county in this State would be exempt from the operation of article 426? Certainly not. As we understand this record, this is the sole question raised by appellant as a ground for reversal, and, as we can not concur in the views taken by appellant, the judgment is affirmed.

Affirmed.

MOTION FOR REHEARING. Hogg Robertson, for appellant. — Now comes the appellant by counsel, and asks this court to grant him a rehearing in this case for the following reasons:

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.

ON MOTION FOR REHEARING. Decided December 15, 1897.