SUPREME COURT RECORDS PAGE 15

 

File contributed by Lisa Lach and proofed/formated by Dena Stripling

 

 

Unless the supreme court is fully satisfied from the evidence that the trial court

erred in the exercise of its discretion in admitting parol proof of the existence

of a lost or destroyed record, it will not interfere.

 

 

Where a witness testified that he had seen a certain order on the records of the

probate court, and that the records were carelessly kept, and he believed the

record of said order had been destroyed, and the clerk testified that the records

were carelessly kept, and some of them mutilated, but that they were not mutilated

for the time when said order should have been recorded, the evidence of the

destruction of the records was not made out, and oral evidence that such order

had been made of record was not admissible.

 

 

The discretion of a court in allowing parol proof of the existence of a lost or

destroyed record must rest upon a reasonable conclusion drawn from all the

evidence on the matter.

 

It is a matter within the discretion of the court to determine whether a proper

basis has been laid by proving the loss or destruction of a record to let in parol

proof that the record once existed.

 

*1 Appeal from Bastrop.

Hamilton & Walton, for appellants. It is believed that the second assignment is

well taken.

That the appellants had the right to introduce testimony proving the former existence

and contents of the records or papers, and their loss or destruction, of the County

Court of Bastrop county, see 3 Phil. Ev., 1067, note 723, with authorities cited; 1

Greenl. Ev., 581, with authorities cited.

A sufficient basis was laid by appellants for the introduction of the secondary evidence

offered. The Court will not hold appellants to the strictest proof in laying proper

foundation for the introduction of such evidence, because Courts show great liberality

where no suspicion hangs over the party seeking to establish the contents of lost papers

or records. It is not intimated that appellants are chargeable with the loss of the

records and papers.

We have in the testimony positive evidence of the former existence of the records and

papers upon which the validity of appellants' title depends. We have the further

evidence that those records and papers do not exist or cannot be found in their proper

place of deposit. This is, then, certainly sufficient to admit the secondary evidence

to the jury sought to be introduced as establishing the contents of the records and

papers, &c.

The Probate Court is not strictly a Court of record. It is, therefore, contended that

any paper on file in such Court would be as good evidence of the action of the Court as

a record made of these papers would be.

It is contended that all the papers as they are on file are, in fact, the record of the

Court. This position has been sustained by one or more of the District Judges. We know

not with what favor it will meet in this Court. If, then, the Court papers are in fact

the record, proof of the loss of such papers will admit parol evidence as to their

contents, although they had never been recorded in a bound book, &c. This seems to be

a rule which may well be adopted where so great a necessity exists for it as in our

State, in view of the careless and negligent manner in which our records and Court

papers were kept years since.

Should a different rule than this obtain it would be the source of interminable

litigation. But we are not forced to rely upon this rule, because the testimony of

James Smith is positive and emphatic as to the former existence of such orders and

papers. William Dunbar's testimony is equally positive as to the non-existence of

such orders and papers in their proper deposit.

There is no positive rule as to the amount and character of evidence to be introduced

as a sufficient basis for the introduction of parol testimony proving the contents of

lost papers or records, but each case must stand upon the circumstances surrounding it,

&c.

Poage and Marshall, for appellees.

 

 

LIPSCOMB, J.

This suit was brought by the heirs of Garretson to recover from the defendants one-third

of a league of land. The defendants set up in defense a purchase from one Smith, the

administrator of Garretson. The first evidence offered by them is a covenant as follows

, i. e.:

*2 "Know all men by these presents that I, James Smith, administrator of Jas. Garretson,

deceased, by virtue of an order of the Probate Court in and for the county aforesaid,

(Bastrop,) did expose the within claim at public sale in the town of Bastrop, on the 28th

May, 1838, to the highest bidder, on a credit of six months, and Thomas H. Mays being the

highest and best bidder, at the sum of four hundred and fifty dollars, and it was struck

down to him at that sum, for which I bind myself, my assigns, and the heirs and assigns

of Thomas Garretson, so far as the ability in me exists as administrator, to make a good

and sufficient title to the said land, if the said bidder should not receive the patent

in his own name, so soon as title is obtained for the same. Given under my hand in the

town of Bastrop this 28th May, 1838.

JAMES SMITH. [L. S.]"

The defendant offered to prove by oral testimony that there had been an order of sale,

that the return of the sale had been made to the Court, and that the same had been

approved by the said Court; which evidence was rejected by the Court, and there was a

verdict and judgment for the plaintiffs; a motion for a new trial made and overruled,

from which the defendants appealed.

The first assignment of error, that the Court compelled the defendants to read the whole

transcript in evidence of all the matters and things of record in relation to the

succession of the said Thomas Garretson, when they only offered to read two pages of

the same, is not supported by the record. It appears that the whole transcript was read

by the defendants without any ruling of the Court that it should be done, or offer on

their part to read only a part of it.

The second one is, that the Court erred in rejecting the evidence offered to prove that

the order for sale had been made by the Probate Court, the return of the sale by the

administrator, and the approval and confirmation thereof by the Probate Court. It

appears from the record that Smith, the administrator, was called by the defendants.

He testified that he had sold the certificate under an order of the Probate Court,

and returned to the Court an account thereof, which was approved and confirmed by the

Court; that he had looked for the order of the Court for the sale and for the

confirmation, and could not find them on the records, though he had seen them there;

that the records have been carelessly kept and much mutilated, and he believes that

the record has been destroyed. Dunbar, the keeper of the records and Clerk of the

Court, swears that the order and confirmation cannot be found of record, and confirms

the evidence of Smith, that they had been carelessly kept and some of them mutilated;

but he swears "that he had examined the minute-book of the Court for 1837 and 1838;

that he could find no mutilation in said minutebook between the period of granting

letters of administration upon the estate of Thomas Garretson and the date of transfer

by James Smith, administrator of said Garretson, indorsed on the certificate aforesaid,

and that there was a continuation in said book from page to page connecting the orders."

The minute- book was inspected by the Court, and it was ruled that the evidence of the

destruction of the records was not made out, and the Court rejected the oral evidence

that such orders had been of record.

*3 It is always a question addressed to the discretion of the Court to determine whether

the basis has been laid by proving the loss or destruction of a record, to let in proof

that such record once did exist. This discretion is not an arbitrary, capricious

discretion, but must be a reasonable conclusion from the evidence. But unless we were

fully satisfied from the evidence that the Court below erred in the exercise of its

discretion, we would not be authorized to reverse its decision. Parol evidence to

supply record testimony should be received with great caution. In such cases the

temptation to fraud and perjury would be very great, and the difficulty, if not the

impossibility, of a conviction for perjury, and of rebutting such evidence, would be

an encouragement to an unscrupulous witness. It is a rule of law that affirmative

evidence is entitled to more weight than negative. So one witness might swear to the

contents of a record, and two swear they had never seen such record; the affirmative

witness would prevail against the two negative witnesses, and it would be almost an

impossibility to convict that witness of perjury, if it had been a perjury,

fabricated and perpetrated for the particular occasion. Hence the necessity that

the most satisfactory evidence of the destruction of the record should be required

before parol evidence can be admitted to supply the contents of the record. The

evidence of such mutilation and loss was rebutted by the evidence of Dunbar, the Clerk

of the Court, and the inspection of the book itself, that should have contained such

record, if it had existed. We believe that the Judge did not err in his decision

rejecting the evidence offered.

The record presents nothing else for our consideration, and the judgment is affirmed.

Judgment affirmed.

Tex. 1854.

MAYS AND ANOTHER v. MOORE AND OTHERS.

13 Tex. 85, 1854 WL 4468 (Tex.)

END OF DOCUMENT

 

 

=====

 

 

Unless the supreme court is fully satisfied from the evidence that the trial court

erred in the exercise of its discretion in admitting parol proof of the existence of

a lost or destroyed record, it will not interfere.

 

 

Where a witness testified that he had seen a certain order on the records of the probate

court, and that the records were carelessly kept, and he believed the record of said

order had been destroyed, and the clerk testified that the records were carelessly kept,

and some of them mutilated, but that they were not mutilated for the time when said

order should have been recorded, the evidence of the destruction of the records was not

made out, and oral evidence that such order had been made of record was not admissible.

 

 

The discretion of a court in allowing parol proof of the existence of a lost or destroyed

record must rest upon a reasonable conclusion drawn from all the evidence on the matter.

 

 

It is a matter within the discretion of the court to determine whether a proper basis has

been laid by proving the loss or destruction of a record to let in parol proof that the

record once existed.

 

*1 Appeal from Bastrop.

Hamilton & Walton, for appellants. It is believed that the second assignment is well taken.

 

That the appellants had the right to introduce testimony proving the former existence and

contents of the records or papers, and their loss or destruction, of the County Court of

Bastrop county, see 3 Phil. Ev., 1067, note 723, with authorities cited; 1 Greenl. Ev.,

581, with authorities cited.

A sufficient basis was laid by appellants for the introduction of the secondary evidence

offered. The Court will not hold appellants to the strictest proof in laying proper

foundation for the introduction of such evidence, because Courts show great liberality

where no suspicion hangs over the party seeking to establish the contents of lost papers

or records. It is not intimated that appellants are chargeable with the loss of the

records and papers.

We have in the testimony positive evidence of the former existence of the records and

papers upon which the validity of appellants' title depends. We have the further evidence

that those records and papers do not exist or cannot be found in their proper place of

deposit. This is, then, certainly sufficient to admit the secondary evidence to the jury

sought to be introduced as establishing the contents of the records and papers, &c.

The Probate Court is not strictly a Court of record. It is, therefore, contended that

any paper on file in such Court would be as good evidence of the action of the Court

as a record made of these papers would be.

It is contended that all the papers as they are on file are, in fact, the record of th

e Court. This position has been sustained by one or more of the District Judges. We know

not with what favor it will meet in this Court. If, then, the Court papers are in fact

the record, proof of the loss of such papers will admit parol evidence as to their

contents, although they had never been recorded in a bound book, &c. This seems to be

a rule which may well be adopted where so great a necessity exists for it as in our

State, in view of the careless and negligent manner in which our records and Court

papers were kept years since.

Should a different rule than this obtain it would be the source of interminable litigation.

But we are not forced to rely upon this rule, because the testimony of James Smith is

positive and emphatic as to the former existence of such orders and papers. William Dunbar's

testimony is equally positive as to the non-existence of such orders and papers in their

proper deposit.

There is no positive rule as to the amount and character of evidence to be introduced as a

sufficient basis for the introduction of parol testimony proving the contents of lost

papers or records, but each case must stand upon the circumstances surrounding it,

&c.

Poage and Marshall, for appellees.

 

 

LIPSCOMB, J.

This suit was brought by the heirs of Garretson to recover from the defendants one-third

of a league of land. The defendants set up in defense a purchase from one Smith, the

administrator of Garretson. The first evidence offered by them is a covenant as follows,

i. e.:

*2 "Know all men by these presents that I, James Smith, administrator of Jas. Garretson,

deceased, by virtue of an order of the Probate Court in and for the county aforesaid,

(Bastrop,) did expose the within claim at public sale in the town of Bastrop, on the

28th May, 1838, to the highest bidder, on a credit of six months, and Thomas H. Mays

being the highest and best bidder, at the sum of four hundred and fifty dollars, and

it was struck down to him at that sum, for which I bind myself, my assigns, and the

heirs and assigns of Thomas Garretson, so far as the ability in me exists as administrator,

to make a good and sufficient title to the said land, if the said bidder should not

receive the patent in his own name, so soon as title is obtained for the same. Given

under my hand in the town of Bastrop this 28th May, 1838.

JAMES SMITH. [L. S.]"

The defendant offered to prove by oral testimony that there had been an order of sale,

that the return of the sale had been made to the Court, and that the same had been

approved by the said Court; which evidence was rejected by the Court, and there was

a verdict and judgment for the plaintiffs; a motion for a new trial made and overruled,

from which the defendants appealed.

The first assignment of error, that the Court compelled the defendants to read the whole

transcript in evidence of all the matters and things of record in relation to the

succession of the said Thomas Garretson, when they only offered to read two pages of

the same, is not supported by the record. It appears that the whole transcript was

read by the defendants without any ruling of the Court that it should be done, or

offer on their part to read only a part of it.

The second one is, that the Court erred in rejecting the evidence offered to prove

that the order for sale had been made by the Probate Court, the return of the sale

by the administrator, and the approval and confirmation thereof by the Probate

Court. It appears from the record that Smith, the administrator, was called by the

defendants. He testified that he had sold the certificate under an order of the

Probate Court, and returned to the Court an account thereof, which was approved and

confirmed by the Court; that he had looked for the order of the Court for the sale

and for the confirmation, and could not find them on the records, though he had seen

them there; that the records have been carelessly kept and much mutilated, and he

believes that the record has been destroyed. Dunbar, the keeper of the records and

Clerk of the Court, swears that the order and confirmation cannot be found of record,

and confirms the evidence of Smith, that they had been carelessly kept and some of

them mutilated; but he swears "that he had examined the minute-book of the Court for

1837 and 1838; that he could find no mutilation in said minutebook between the period

of granting letters of administration upon the estate of Thomas Garretson and the date

of transfer by James Smith, administrator of said Garretson, indorsed on the certificate

aforesaid, and that there was a continuation in said book from page to page connecting

the orders." The minute- book was inspected by the Court, and it was ruled that the

evidence of the destruction of the records was not made out, and the Court rejected

the oral evidence that such orders had been of record.

*3 It is always a question addressed to the discretion of the Court to determine whether

the basis has been laid by proving the loss or destruction of a record, to let in proof

that such record once did exist. This discretion is not an arbitrary, capricious

discretion, but must be a reasonable conclusion from the evidence. But unless we were

fully satisfied from the evidence that the Court below erred in the exercise of its

discretion, we would not be authorized to reverse its decision. Parol evidence to

supply record testimony should be received with great caution. In such cases the

temptation to fraud and perjury would be very great, and the difficulty, if not the

impossibility, of a conviction for perjury, and of rebutting such evidence, would be

an encouragement to an unscrupulous witness. It is a rule of law that affirmative

evidence is entitled to more weight than negative. So one witness might swear to the

contents of a record, and two swear they had never seen such record; the affirmative

witness would prevail against the two negative witnesses, and it would be almost an

impossibility to convict that witness of perjury, if it had been a perjury,

fabricated and perpetrated for the particular occasion. Hence the necessity that the

most satisfactory evidence of the destruction of the record should be required before

parol evidence can be admitted to supply the contents of the record. The evidence of

such mutilation and loss was rebutted by the evidence of Dunbar, the Clerk of the Court,

and the inspection of the book itself, that should have contained such record, if it had

existed. We believe that the Judge did not err in his decision rejecting the evidence

offered.

The record presents nothing else for our consideration, and the judgment is affirmed.

Judgment affirmed.

Tex. 1854.

MAYS AND ANOTHER v. MOORE AND OTHERS.

13 Tex. 85, 1854 WL 4468 (Tex.)

END OF DOCUMENT

 

 

 

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Supreme Court of Texas.

THE STATE

v.

EDWARD TONEY.

1854.

 

 

An indictment against "Edward Toney Joseph Scott," laborers, intended for Edward Toney

and Joseph Scott, is bad.

 

*1 Appeal from Bastrop. This was an indictment against Edward Toney Joseph Scott, late

of Bastrop county, laborers, for permitting gambling in a house kept for the retailing

of spirituous liquors.

Edward Toney pleaded in abatement that his real name is Edward Toney, and that he was

never known or called Edward Toney Joseph Scott. The plea was sustained, the indictment

quashed, and the State appealed.

Attorney General, for appellant. The indictment, as the body of it shows, was jointly

against Edward Toney and Joseph Scott, described in the indictment as """Edward Toney

Joseph Scott, late of Bastrop county, laborers."

It would be difficult, if not altogether impracticable, to adduce any standard

authority for holding that the trifling omission of the conjunction "and" between

two several names of different defendants jointly indicted, while clearly

distinguished by after-words in the same instrument, (as here by the word "laborers"

in the plural number,) amounts to misnomer as a ground for abatement.

 

 

HEMPHILL, CH. J.

We are of opinion that there was no error in the judgment. If Edward Toney Joseph

Scott be in fact two persons, it should have appeared with such certainty on the

face of the indictment as not to be mistaken. We may infer that more than one

person was intended from the addition "laborers" being in the plural number, and

from their being described as "possessors and occupiers of a house," &c. But this

should have been made certain, and not left to inference. If Edward Toney Joseph

Scott be two persons, there is no certainty upon the indictment as to their names.

They might be Edward and Toney Joseph Scott--or Edward Toney Joseph and Toney Joseph

Scott--or other changes might be rung on the name.

Judgment affirmed.

Tex. 1854.

THE STATE v. EDWARD TONEY.

13 Tex. 74, 1854 WL 4463 (Tex.)

END OF DOCUMENT

 

 

*1 In the construction of acts of the same session, the rule is that the whole must be

taken as one act; and to make a latter provision repeal a former, there must be an

express repeal, or an irreconcilable repugnancy between them; and then the latter

will control. 5 Tex. 418; 7 Tex. 76; 8 Tex. 62; 17 Tex. 596; 26 Tex. 178; 27 Tex. 68.

The codes were designed to form a system of criminal law complete in itself. That was

the theory. But it was not supposed that they were already sufficiently perfected to

meet all the exigencies and wants of society; and hence other laws upon the subject

were enacted from time to time, as the occasion suggested.

The act to authorize the county courts of the state to grant a license for the retail

of spirituous, vinous and other intoxicating liquors in quantities less than a quart,

and imposing a license tax for such privilege, approved February 2d, 1856, was not

repealed by the penal code and code of criminal procedure enacted at a subsequent

period of the same session.

Where two defendants were jointly indicted for the violation of a license law, and

the jury "found them guilty and assessed the fine at fifty dollars," upon which the

court below rendered judgment against each defendant for fifty dollars, it was held,

on appeal, that the judgment should have been rendered against the defendants jointly

for fifty dollars only, and it was reformed accordingly.

Appeal from Bastrop. Tried below before the Hon. A. W. Terrell.

Indictment charging Barney Cain and John Persons with selling intoxicating liquors, on

the first day of July, 1857, in quantities less than a quart. Motion to quash the indictment

on the ground that there was no such offense known to the laws of the state. Motion

overruled. Verdict as follows: "We, the jury, find the defendants guilty, and assess

the fine at fifty dollars." Judgment against each defendant for fifty dollars.

 

 

Defendants jointly indicted, "whom the jury found guilty and assessed the fine at $50."

must pay jointly, and not $50 each.

 

 

One act will not be construed as repealing by implication another act passed at the same

session, unless they are repugnant.

 

 

The Criminal Code repealed all acts relating to crimes and punishments, but did not

repeal the liquor license law passed at the same session, to which no reference was

made in the Code, and which was expressly recognized by a subsequent act.

C. C. & A. D. McGinnis, for appellants. I. The penal code and code of criminal procedure,

adopted at the adjourned session of the last legislature, and approved on the 26th

August, A. D. 1856, repealed the statute of 2d February, 1856; and there is not and

was not at the time appellants sold intoxicating liquors in quantities less than a

quart, any law in force prohibiting them from doing so. See Penal Code, articles 1,

12, 15, and 54, and latter part of page 167. Also see the Code of Criminal Procedure,

preamble and section 1st. Also final title, sections 2, 3, and 4. It may be contended

by the attorney for the state, that the statute of February, 1856, and the one adopting

the codes, being passed by the same legislature, must be construed together; but we

hardly deem it necessary to cite authority to this court, to sustain the position,

that the legislature can repeal a statute the same session it was passed. But we will

refer the court to a decision at Tyler, April term, 1857, The State v. Robinson,

where the court held "it would be difficult to maintain that it (the law in question)

was not virtually and impliedly, though not expressly repealed by the institution of

an entirely new system of laws on the subject, upon the change of government;" and

in the subsequent part of the same decision the court held the repeal would nevertheless

be sustained, though it were not expressly intended in the repealing statute. See the

Southern Intelligencer, vol. 2, No. 10. In the case now before the court we hardly deem

it necessary to discuss the question of repeal of statutes by implication; for on the

latter part of the 167th page of the penal code, the legislature, after repealing by

enumeration various acts, use the following language: "Together with all other laws and

parts of laws relating to crimes and punishments, are hereby repealed."

*2 II. It was error to render judgment against the defendants for fifty dollars each,

upon a verdict finding a fine of fifty dollars against the defendants jointly.

Attorney-General, for appellee. I. The code was passed at the same session with the

act of February 2, 1856, and a liberal construction will be adopted in order to sustain

both enactments. 9 Bac. Abr. 225; Sedg. Con. and Stat. Law, 122, 127; Foster's Case,

11 Co. R. 63; 3 Mon. 80; Const. of this state, art. 3, sec. 22.

II. The code, a statutory act, is a general law upon crimes and punishments. The license

act is special. Its leading object was to regulate the business of retailing liquors,

and to raise a revenue for special purposes. To enforce its provisions it is made penal

to violate the act. The penal clauses then refer particularly to the single offense of

selling without license. Sedg. Con. & Stat. Law, 123.

III. There is no repugnancy between the two acts. The first article of the code is in

the nature of a preamble. Neither this or any other provision indicates that it was

intended to embrace all and every offense, without regard to laws passed at the same

session upon the same subject. To constitute a repugnancy, it is necessary that two

acts shall relate to the same subject, and shall make contradictory or inconsistent

provisions upon that subject. The code does not profess to make any provision whatever

for the offense of retailing liquor without license. Id. 127; Bowen v. Lease, 5 Hill

, 221; Canal Co. v. R. R. Co. 4 Gill & Johns. 1; Street v. Comm. 6 W. & S. 209; Comm.

v. Bank, 10 Barr, 442; Brown v. County Com. 21 Penn. 37; Williams v. Potter, 2 Barb.

(S. C.) 316; Comm. v. Herring, 6 Cush. 465.

IV. It was manifestly not intended to repeal the act of February 2, 1856, as appears

from the history of the legislation on the subject. The codes were reported by the

commissioners, and action had been taken upon them in the legislature before the

passage, or even the introduction of the license law. Of course then the repealing

clauses, which were part of the original bill, could have no reference to a statute

not in existence, and indeed not introduced. This part of the subject is well

discussed in the case of Delesdenier v. The State, 7 Tex., which though the decision

of a special court, and therefore in strictness not authority, is yet entitled to all

the weight which clear, lucid, sound and forcible reasoning can give to any case.

 

V. Upon the whole case it seems to be beyond controversy that both acts or rather the

three acts may stand. Indeed, if the rule invoked in aid of the notion that the

license law is repealed, were caried out in strictness, we might, with equal propriety,

conclude that the penal code, which was approved the 28th of August, had repealed the

code of procedure passed two days before. If the three acts be regarded as laws upon

the same subject, the rule laid down in the Kentucky case (3 Mon. 80) would well apply,

and they would all be held to be one act, or rather construed as if embodied in one.

When we come to recollect that for various causes incident to legislation, an act

introduced very early in the session may be delayed, and another subsequently brought

forward may be first passed into a law, the propriety of the principles to which I

have alluded, as governing the question, will be strikingly apparent.

 

 

WHEELER, J.

*3 This indictment was found under the 5th section of the act of the 6th legislature,

entitled "An act to authorize the county courts of this state to grant a license for

the retail of spirituous, vinous and other intoxicating liquors in quantities less

than a quart, and imposing a license tax for such privilege," approved February 2d,

1856. Pamphlet Acts, p. 67. The material question to be determined is whether this act

was repealed by acts of a later date, passed by the same legislature. It is insisted

for the appellants that it was; and we are referred, in support of this opinion, to

several provisions of the penal code and the code of criminal procedure.

Without dwelling to quote the several provisions referred to, it will suffice to observe,

that in none of them is there, nor is it contended that there is, an express repeal of

the act in question, or any repugnancy to its provisions. If repealed, it must be by

general words of repeal of former laws, or by implication.

In considering the question, it is important to observe that both the act supposed to be

repealed, and the supposed repealing act, are acts of the same legislature. This, it is

conceived, renders inapplicable the ordinary rules of construction employed to determine

whether former laws have been repealed by the enactments of a subsequent legislature.

By attending to this distinction, and applying the rule which governs the construction

of acts passed at the same session, the question, we think, is freed from difficulty.

The rule is, that in the construction of acts of the same session, the whole must be

taken and construed as one act, and to make a latter provision repeal a former, there

must be an express repeal, or an irreconcilable repugnancy between them; and then the

latter will control. 3 Moore, 77; Sedg. on Stat. and Const. Law, 415. The case of

Peyton v. Moseley, determined by the court of appeals of Kentucky, is a stronger case,

it is conceived, of the apparent repeal, by the legislature, of a prior act, by one

subsequently passed at the same session, than the legislation in question affords;

and yet the court held there was no repeal. An act of the legislature prescribed the

form of a recognizance to be taken in certain cases, concluding with the words,

"witness my hand and seal." A subsequent act of the same session abolished the use

of seals, putting sealed and unsealed instruments on the same footing. It was insisted

that the latter act repealed the former. But the court said: "It is true, as observed

by the court below, the expressions of this latter act are very broad, and if it had

not passed at the same session with the former, it might, by the ordinary rules of

construction, be held to repeal the former pro tanto. But with regard to acts passed

at the same session, we apprehend that the rules of construction are somewhat

different. When they are compared together, they ought to be construed as one act

on the same subject; and the presumption of so sudden a change or revolution in the

minds of the legislature, ought not to be indulged. There ought to be an express

repeal, or an absolute inconsistency between the two provisions, to authorize a court

to say that the latter had repealed the former. If both these provisions were in the

same act, both must have effect if possible. Hence the conclusion would be, that the

recognizance directed to be taken with a seal, in which the bail stipulated for the

principal, ought to be held as an exception to the general provision which dispensed

with a seal." 3 Monroe, 80. And thus the court, instead of holding acts of the same

session, apparently repugnant, the one to repeal the other, gave effect to both,

although in order to do so, it became necessary to engraft the former upon, or

incorporate it in the latter act, as an exception to its provisions.

*4 In Bacon's Abridgement it is laid down that an act cannot be altered or repealed

in the same session in which it is passed, unless there be a clause inserted expressly

reserving a power to do so. 8 Bac. Abr. 225. This, however, is dependent on a rule of

parliament. Mr. Sedgwick, in his treatise on statutory and constitutional law, states

this, and refers, in the same connection, to the 22d section of the 3d article of the

constitution of this state; which, it is conceived, is confirmatory of the doctrine

that it will not be intended, unless the action of the legislature has been such as

to render that conclusion unavoidable, that acts passed at the same session repeal one

another. "In the English houses of parliament (says Mr. Sedgwick) a rule prevails that

no bill can be introduced in repeal of or in opposition to any law passed at the same

session. And in order to obviate this, it is there the practice to insert in every bill

a clause providing that the act may be amended or repealed at the same session. No

general rule or practice of this kind (he adds) prevails in this country. But the

constitution of the state of Texas contains this clause: 'After a bill or resolution

has been rejected by either branch of the legislature, no bill or resolution embracing

the same substance shall be passed into a law during the same session.' 'DD'

The reason of this provision is, that when a subject has once been presented to the mind

of the legislature, and considered and acted on, it is to be presumed that they have

acted intelligently and according to their deliberate judgment, and that to permit

their attention to be called to the same subject again, would be but a useless

consumption and waste of time. Hence the framers of the constitution thought proper

to forbid it, and thus preclude the presumption, which the court in Peyton v.

Moseley say ought not to be indulged, of so sudden a change or revolution in the

mind of the legislature. The same legislature is supposed to be actuated, in all

that it does, by the same mind, spirit, and intention, and to have, at all times,

the same governing objects and policy. The artificial being is supposed to have

but one mind, and that a rational and intelligent mind; and hence the cogency of

the presumption, affirmed by the constitution, that it will not change from day to

day during the same session, and undo to-day what was done with so much deliberation

and solemnity yesterday. It is not to be supposed, nothing short of expressions so

plain and positive as to force upon the mind an irresistible conviction, or absolute

necessity, will justify a court in presuming, that it was the intention of the legislature

that their acts passed at the same session, should abrogate and annul one another.

The decent respect due a co-ordinate department of the government, would seem to

forbid that such a presumption be indulged by the court. As we had occasion to say

in Neill v. Keese, "it would not be a reasonable mode of construing acts of the

legislature, so to construe them as to make one act repeal another passed at the

same session. It cannot be supposed that it was their intention that acts thus

passed should abrogate and repeal one another." 5 Tex. 33.

 

*5 Even in respect to acts passed at different sessions, although it is clearly

settled that statutes may be repealed by implication, when their provisions are

irreconcilable, "still (says Sedgwick, p. 127) the leaning of the courts is against

the doctrine, if it be possible to reconcile the two acts of legislature together."

So in Pennsylvania it has been declared that act of one assembly is held to repeal

another by implication only in cases of very strong repugnancy, or irreconcilable

inconsistency. And so in New York it is held that unless the latter statute is

absolutely inconsistent with and repugnant to the former, both remain in force. So too

in Massachusetts, the latter statute must be clearly repugnant to the former to effect

a repeal by implication. Id. 127-128; 6 Watts & Serg. 209; 10 Barr, 442; 21 Penn. 37;

2 Barb. (S. C.) 316; 6 Cush. 465. This is the well settled doctrine; and the reason of

it is said to be that laws are presumed to be passed with deliberation, and with a full

knowledge of all existing ones on the same subject. Id. The doctrine, of course,

applies with additional force of reason to the acts of the same session.

Treating of the rule that the statute last in point of time controls, Mr. Sedgwick

says: "But it is only in cases of irreconcilable repugnancy, that this rule applies:

it gives way to the fundamental principle, that the intention of the legislature

is to govern." "A subsequent statute," says Parsons, C. J., "generally will control

the provisions of former statutes, which are repugnant to it according to its strict

letter. But there are exceptions to this rule, depending on the construction of the

last statute agreeably to the intention of the legislature." "The general rule is

conceded to be," it has been said in Pennsylvania, "that where two statutes contain

repugnant provisions, the one last signed by the governor is a repeal of one

previously signed. But this is so merely because it is presumed to be so intended by the

law-making power. Where the intention is otherwise, and that intention is manifest upon

the face of either enactment, the plain meaning of the legislative power thus manifested,

is the paramount rule of construction. It is no part of the duty of the judiciary to

resort to technical subtleties to defeat the obvious purposes of the legislative power

in a matter over which that power has a constitutional right to control." Sedgw. 415,

416. These observations, in respect to the repealing effect of subsequent upon former

enactments, have reference, of course, to cases where there is such absolute repugnancy,

as that both provisions cannot stand together, and the court is, of necessity, compelled

to give effect to one as expressive of the legislative intention rather than another.

*6 All the rules of construction must give way, as observed by Mr. Sedgwick, to the

fundamental principle that the intention of the legislature is to govern. Indeed, the

design of those rules is to furnish guides to assist in arriving at the intention of

the legislature. "The object and the only object of judicial investigation in regard

to the construction of doubtful provisions of statute law, is to ascertain the intention

of the legislature which framed the statute." Id. 231. That intention, where it can be

discovered, will prevail over the literal import of words. For "if," says Bacon, "from a

view of the whole law, and from other laws in pari materia, the evident intention is

different from the literal import of the terms employed to express it in a particular

part of the law, that intention should prevail, for that in fact is the will of the

legislature." 9 Bac. Abr. Statutes (J), p. 240. This doctrine was applied by the court

in the case of The State v. Delesdenier, 7 Tex. 76, 104, 105, 106, where it was held

that the repealing clause of the act of the 14th of December, 1837, as broad and

sweeping in its terms as the repealing clauses of the codes, did not effect a repeal

of a law of a former session, reserving certain lands from location.

It is a well settled rule in the construction of statutes, and for the purpose of

arriving at the legislative intention, that all laws in pari materia, or on the

same subject matter, are to be taken together and examined in order to arrive at the

result. Sedg. 247. "All acts in pari materia," said Lord Mansfield, "are to be taken

together as if they were one law." Id. There is no doctrine in relation to the

construction of statutes more certainly settled than this: that all acts in relation

to the same subject matter are to be taken in pari materia and considered as one act. Id.

247-251; 6 Indiana, 83, 354. Whether, indeed, of the same or former sessions, all are to be

looked to to arrive at the intention of the legislature, and more especially those of the

same session.

If we look to the other acts of the same session, we find that by an act passed subsequently

to the codes the act here in question, of the 2d of February, 1856, is directly referred

to and recognized as being still in force. Ch. 167, sec. 1, of Acts, etc. p. 93. This

certainly places it beyond a doubt that the legislature did not, in fact, intend, by

adopting the codes, to repeal the act in question, whatever may have been the language

employed in the codes. The intention being thus manifest, upon no principle or rule of

construction, it is conceived, can it be held that it is repealed; for it is the intention

of the legislature, constitutionally expressed, which makes the law; and having shown, by

subsequent enactments, that it was not intended by adopting the codes to repeal the act in

question, it is perfectly clear that their adoption cannot have that effect. According

to an authority before quoted, since, from other laws in pari materia, it thus evidently

appears that the real intention was contrary to the "literal import of the terms employed

to express it in a particular part of the law, that intention should prevail, for that,

in fact, is the will of the legislature." 9 Bac. Abr. 240. It is, moreover, manifest,

notwithstanding the apparent and expressed design and object of the codes, that the

legislature did not intend--they cannot have intended--that these should absolutely

and necessarily embrace all the laws of a penal nature; for they went on immediately

thereafter and continued to enact various other penal laws, prescribing the penalty

for a violation of their provisions in the laws themselves, passed after the adoption

of the codes. The codes were designed to form a system of criminal law complete in

itself. That was the theory. But it was not supposed that they were already sufficiently

perfected to meet all the exigencies and wants of society; and hence other laws upon

the subject were enacted from time to time, as the occasion suggested. Acts, same session,

ch. 155, p. 84; ch. 164, p. 90; ch. 174, p. 101.

*7 If doubt remained as to the legislative intention, we might look to the history of

the legislation upon this subject; "the old law, the mischief and the remedy;" to the

fact that former legislation had proved ineffectual, the act of the 11th of February,

1854, having been decided by this court unconstitutional; and from the large share it

will be admitted to have occupied in the public and legislative mind, it would appear

quite impossible that the same legislature which had so lately and with so much deliberation

enacted the law, could have intended its repeal, or, indeed, that they would have adopted

the codes, as they finally did, if they had supposed any such effect would be claimed for

them. For it will be conceded that the enactment of a law upon the subject of the present,

occupied as large a share of public expectation, and assumed as much prominence and

importance in the public and legislative mind as any other measure of municipal law,

affecting the public welfare, passed by that legislature, the codes not excepted. If

the minds of the legislature had really undergone so sudden a revolution, it seems

impossible to doubt that they would have made it known, and removed all occasion for

controversy on the subject by a direct, express repeal of the act, in terms. No one,

I apprehend, has for a moment supposed that such really and in fact was their intention.

If the law is thought to have been repealed, it must be supposed to have happened by some

unaccountable oversight in adopting the codes, without attending sufficiently to their

provisions and effect; a kind of accidental repeal. But, I apprehend, laws have never been

held to have been thus repealed, contrary to the legislative intention, unless, indeed,

the legislature have been so unguarded and unfortunate in the use of language to express

their intention, that it is impossible to hold otherwise than that one provision does repeal

another, by necessary implication, because of an irreconcilable repugnancy.

It is only necessary to advert to the history of the legislation upon this subject, to bring

home to every mind the conviction that no one has been actually misled or deceived by any

action of the legislature, as to what their intention really and in fact was. If any have

contravened the provisions of the law, and incurred its penalty, it has been done in known

disregard of the legislative will.

It is a familiar and admitted rule in the construction of statutes, which this court has

adopted and enforced, that a subsequent statute, 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. And though a subsequent statute be not repugnant in its

provisions to a former one, yet if it was clearly intended to prescribe the only rules

which should govern, it repeals the prior statute. Rogers v. Watrous, 8 Tex. 62. But

this rule was not adopted, nor is it believed, ever to have been applied to aid in

the construction of acts passed at the same session. It has no reference to the

revising of acts thus passed. It is not to be supposed that the mind of the legislature

will be occupied in making a revision of laws while enacting them. A revision implies

the re-examination, orderly arrangement, and embodiment in a new form of the former

laws, or laws in force prior to the revision.

*8 In fine, we are not aware of any principle or precedent to warrant the court in

holding the act in question repealed by the codes adopted at the same session. No

case, it is believed, can be found where it has ever been held that an act of the

legislature has been thus repealed, either by the general repealing clauses, or the

provisions of other laws passed at the same session, where the latter were not

repugnant to the former. Nothing short of a direct express repeal in terms, or such

irreconcilable repugnancy as that both cannot stand together, and one consequently

must give place to the other and operate its repeal by implication, has, it is

believed, ever been held sufficient to justify a court in holding one act repealed

by another passed at the same session. As there has been no such express repeal,

and no such repugnancy is perceived between the provisions of the act in question

and the codes, or any of their provisions, we are of opinion that the act remains

in force; and consequently that the prosecution and conviction in this case were

warranted by law. The judgment, however, does not follow the verdict. That assessed

a joint fine against both defendants; and it was error to adjudge and impose the

entire amount of punishment, so found by the verdict against the defendants jointly,

upon each severally. The judgment must, therefore, be reversed, and such judgment

be here rendered as the court should have rendered upon the verdict.

Judgment reformed.

 

 

ROBERTS, J., dissenting.

Not being able to satisfy myself of the correctness of the rule of construction upon

which the very able and elaborate opinion of the majority is based, I respectfully present

my separate views leading to a different conclusion; and will only say enough to develop

the principles upon which they rest. The act making it a criminal offense to retail

intoxicating liquors in quantities less than a quart was passed on the 2d day of February,

1856, to take effect on the 1st Monday of April thereafter. The penal code was passed

on the 28th day of August, 1856, to take effect on the first day of February, 1857; and

contains no such provision as the liquor law. The question is whether the latter repealed

the former. The code contains a repealing clause which, after enumerating a great many

criminal laws of former sessions, concludes, "and all other laws and parts of laws

relating to crimes and punishments, are hereby repealed." The word crime, as used in the

code, signifies every grade of offense. The liquor law then being a law then in force,

and relating to crimes and punishments, is literally embraced in this repeal.

This expression is unambiguous, and if it be not enforced as expressive of the legislative

will, it must be upon some good reason showing that they did not mean what they have so

plainly expressed. That reason is said to be found in the rule of construction, that the

liquor law, the penal code, and all other acts on the subject of crime passed during the

same session, must be considered and compared together and construed as one act. This

would cause the liquor law to be read into the code as one of its chapters, and would of

course evade the force of the repealing clause in the code.

*9 Before noticing the recognized limitations and restrictions on this rule, it is proper

to examine the foundation and principle of the rule itself. It follows very naturally

from some of the principles and practice which formerly obtained in England in the enactment

of laws by parliament. Lord Bacon says that "an act cannot be altered or repealed in the

same session in which it passed, unless there be a clause inserted expressly reserving a

power to do so." 9 Bac. 225.

Originally all acts of parliament took effect from the first day of the session, although

passed at different times, weeks and months afterwards. There was no date of approval by

the king indorsed on the bill, and it could not be known which one of two acts first

received its final completion. The King v. Justices of Middlesex, 2 Barn. & Ad. 344.

Under such regulations for enacting laws as these, this rule, in their construction,

was forced on the courts as a necessity. To such an extent was this carried that in

Attorney-General v. Chelsea Water-Works Company, Fitzgibbon, 195, it was held that

"when the proviso of an act of parliament is directly repugnant to the purview of it,

the proviso shall stand and be held a repeal of the purview, as it speaks the last

intention of the makers." The rule makes the incident tear down the principal. But

this case illustrates that the unity of legislative will was held only because its

divisibility was not entirely practicable; and so far as it was practicable the court

acted on it. In more modern times the doctrine of Lord Coke has given way before the

acknowledged sovereignty of parliament, and their right to change their will, even in

the same session, without adopting the previous precaution of reserving the power so

to do; and an act takes effect from the date of approval by the king, which is indorsed

thereon. Under these changes it has been held in England that "where two acts of

parliament, passed during the same session and to come in operation the same day, are

repugnant to each other, that which last received the royal assent must prevail, and

be considered pro tanto a repeal of the other." This does not maintain, as does the

case of Peyton v. Moseley, 3 Monroe, 78, in Kentucky, that the two acts shall be read

together as one act, and allow the repugnant part of the one to stand as an exception;

but it admits the divisibility, and possibility of a change of the legislative will,

and adopts as the law its last manifestation. What does the rule thus modified amount

to, and in what does it differ from the ordinary and familiar rule, that two statutes

relating to the same matter are to be considered and construed with reference to each

other (not read as one act, for the reason of that has passed away) and both be made

to stand in force, if there be no intentional repeal, inconsistency, or repugnancy

manifested? In nothing but this, that the force of the rule is increased by the greater

proximity of time between the two acts, passed at the same session. And this is based

upon the reason that "the presumption of so sudden a change or revolution in the minds

of the legislature ought not to be indulged." Peyton v. Moseley, 3 Monroe, 78. Or, in

other words, the presumption is much stronger in favor of the unity of the legislative

will, in the acts of the same session, than in the acts of different sessions. Still

the court is left free to determine whether or not there is a change of intention

manifested in the separate acts of the same session, considering all the parts of both

acts. The mere fact, then, that these two acts were passed at the same session is not

of itself a sufficient reason, as it is believed, for holding that the repealing

clause of the penal code is to be totally disregarded.

*10 Did the legislature, by the adoption of the penal code, intend to repeal the liquor

law; or did they do that which is irreconcilably inconsistent with its remaining in

force as a law? In either event the repeal was consummated.

An examination of the subject, it is thought, will show this, both expressly and by

implication. The constitution of the state requires that "within five years after the

adoption of this constitution, the laws, civil and criminal, shall be revised, digested,

arranged and published in such manner as the legislature shall direct, and a like

revision, digest and publication shall be made every ten years thereafter." By an act

of 10th February, 1854, it was provided "that it shall be the duty of the governor,

by and with the advice and consent of the senate, to appoint three commissioners,

whose duty it shall be to prepare a code, amending, supplying, revising, digesting

and arranging the laws, civil and criminal, of the state, to be submitted to the

legislature for their future action." This law was enacted in pursuance to the above

provision of the constitution. Most probably the words "the laws, civil and criminal,

of the state," as used in the constitution and statute, mean the written, and not the

unwritten laws of the state. For this purpose, as expressed in the law, the

commissioners were appointed and entered upon their work. They did not present one

code of the laws, but three, to wit: a penal code, a code of criminal procedure, a

code of civil procedure, and a volume of revised statutes. It was evidently the

design of all these to embrace all the written laws of the state in a complete system,

and that they should altogether stand in the place of the code which the legislature

had directed them to prepare.

It could not fail to attract their attention, in the perform ance of their duty, that

the constitution provided that "every law enacted by the legislature shall embrace but

one object, and that shall be expressed in the title." They prepared the penal code

in the shape of a single act, entitled "An act to adopt and establish a penal code for

the state of Texas." This is divided into numerous titles relating to the various

branches of the criminal law. And so it was adopted by the legislature. Its design is

to comprehend the whole of the criminal law in these various titles. That is evidenced

by the very effort made to comply with this provision of the constitution as to the

mode of enacting laws. For the "one object" here is "the penal code for the state of

Texas;" that is, a system of written penal laws for the state. By the use of the word

""code," the idea is precluded that it was intended to adopt a part of a system. That

would distort and abridge the meaning of the word.

*11 This however is not left to presumption from the use of particular words, but is

plainly expressed in the first article of the code itself, which reads, "Article 1.

The design of enacting this code is to define in plain language every offense against

the laws of this state, and to affix to each offense its proper punishment." This does

not say some, many or most of the offenses, but every offense against the laws. If we

admit for a moment the hypothesis that the legislature intended to make this code

exclusively complete within itself, at the moment of its adoption, thereby excluding

every other law, written and unwritten, how could they have expressed that intention

more directly and explicitly than they have here done?

 

In prescribing a rule of construction, the 9th article reads: "This code and every

other law upon the subject of crime, that may be enacted, shall be construed according

to the plain import of the language in which it is written," etc. It is hardly

reasonable to infer that the legislature intended to prescribe a rule of construction

for the code and subsequent penal laws, different from that which would apply to

prior laws. We must conclude, then, that they did not contemplate that there would

be any laws left in force to be construed, which were prior to the code.

Again, in part II, it reads as follows, to wit:

 

"TITLE I.

DEFINITION AND DIVISION OF OFFENSES.

Art. 54. An offense is an act or omission forbidden by positive law, and to which is

annexed, on conviction, any punishment prescribed in this code."

Here we are presented with a studied effort at accuracy and precision in giving the

definition of an offense in the state of Texas, and one of the prominent and necessary

elements of that definition is, that there must be a punishment prescribed in "this

code." This would necessarily exclude all penal laws in force prior to the adoption

of the code. It is no answer to this to say that the definition would equally exclude

offenses, subsequently made; for the legislature have not the power to limit or control

subsequent legislation, either at the same or subsequent sessions, as they have former

legislation. So, too, in declaring to what persons the criminal law applies, it is provided

in title III, and art. 36, that "No act done within the uninhabited portions of the state,

by individuals belonging to the several Indian tribes, in their intercourse with each other

or with other tribes, and affecting no other person, is considered as an offense against this

code," etc. To finish fully the exclusive completeness of this code, as the system of penal

laws for the state, the section next to the last reads: "Section 2. The following acts and

parts of acts, to wit:" (here fifty acts and parts of acts are enumerated) "together with

all other laws and parts of laws, relating to crimes and punishments, are hereby repealed."

 

*12 If then the legislature intended that this code should be a complete system of penal

laws within itself, they could not have intended otherwise than that any previous enactment,

not embraced in it, should not be a penal law.

It may be presented in another point of view equally favorable to its repeal, not expressly,

but by implication. It is well established upon authority, that "a subsequent statute,

revising the whole subject-matter of a former one, and evidently intended as a substitute

for it, although it contains no express words to that effect, must, on the principles of

law as well as in reason and common sense, operate to repeal the former." And this is the

case, too, when distinct provisions of the former act are omitted in the latter. Bartlett

and others v. King, 12 Mass. 537; Sedgwick on Con. & Stat. Law, 126.

If the correct view of the scope and object of the code has been taken, it certainly is a

revision of the entire penal laws of the state; and there are various considerations

indicating that it was intended to be a substitute for all former penal laws. For years

past, prior to the adoption of the code, acts of the legislature have been passed, amended,

and changed with reference to the common law, as the fundamental basis of our system of

penal laws. And this process continued during the session which adopted the code down to

the time of its adoption, and even afterwards by inadvertence as may be supposed. Not a

single act, passed that session, either at the first part of it or at the adjourned session

as it is called, makes the least reference directly or indirectly to the penal code,

except alone the code of criminal procedure. Even the acts relating to crimes, which were

approved after the approval of the code, make no reference to it, but on the contrary

make reference, either by the enacting or repealing clause, to the former acts. For

instance, on the 1st September, 1856, two days after the approval of the code, an act

was approved concerning public weighers of cotton, and making a penal offense relating

thereto; when the code had made the same thing, substantially, a penal offense; but

there is such a difference in the language as to rebut the idea that one was passed

with any reference to the other. Code, art. 469; Acts, 90. On the same day an act was

approved prohibiting the sale of liquor in Jamestown and Starrville, and imposing the

penalty prescribed in the liquor law of 2d February, 1856. From which it may be inferred

that the legislature regarded the latter act still in force. But this will not hold good;

for on the 30th August, 1856, after the approval of the code, an act is approved

preventing slaves from carrying guns, etc., and the same act repeals the sixth section

of the act of 1840, which had been expressly enumerated and repealed by the repealing

clause of the code. The same day the liquor law was passed, 2d February, 1856, another

act was passed, making it a penal offense to forge, alter, etc., any instrument to get

a patent, etc. The latter is substantially inserted in the code, and the former is

entirely omitted. The liquor law, although it was introduced into the legislature

after the code was, as it is stated by the attorney general, still it makes no reference

thereto, but on the contrary repeals the act of 1854. Thus it is obvious that the

legislature had in view the amendment of the old system, in the passage of these

various acts, except the two criminal codes; they constituting a new system, that

might or might not be adopted. The minds of the legislators were necessarily led to

regard

the old and the new systems in contrast, as to which of the two should be the future

rule. Both were being perfected at the same time, not in harmony, but in antagonism; not

for joining them together in unison, but for adopting one and rejecting the other.

*13 Two bodies cannot occupy the same space at the same time, so the code being adopted,

became a substitute for the common law and all its perfecting and amending statutes,

which were passed prior to the code; and the liquor law of 2d February, 1856, being one

of them, was repealed by the code. Those passed after the code must stand, though not in

harmony with it, because they are the last expression of legislative will, and cannot

therefore be disregarded by force of what is intended in the code, which is as to them

the anterior law. If it be said on the one side, that there is no precedent for this,

it may be answered on the other, that there is perhaps no similar case to be found,

where a criminal code has been adopted, assuming to embrace all the law on the subject.

And, therefore, the question must be resolved on principle. Penal laws should not only

be plain, but they should be plainly not repealed when they are enforced; especially

if they belong to the class of offenses mala prohibita. Other considerations might be

presented, conducing to the conclusion here arrived at, but sufficient has been said

to develop the basis of the opinion.

Tex. 1857.

BARNEY CAIN AND ANOTHER v. THE STATE.

20 Tex. 355, 1857 WL 5252 (Tex.)

END OF DOCUMENT