Summary
finding that the original enactment in 1932 for the offense at issue constituted a new, complete, and independent enactment
Summary of this case from Conyers v. StateOpinion
No. 30467.
June 5, 1933. Suggestion of Error Overruled July 5, 1933.
1. STATUTES. Statute making robbery or attempt at robbery with deadly weapon a capital offense under certain conditions held not invalid under Constitution providing no law shall be revived or amended by reference to title only ( Const. 1890, section 61; Laws 1932, chapter 328).
Laws 1932, chapter 328, was intended to and did compose a new and independent enactment, complete in itself, and required no reference or resort to any other statute to render it intelligible and to determine its meaning and the scope of its operation.
2. CONSTITUTIONAL LAW. Statutes.
Sufficiency of title of statute is legislative question, and, if there be title dealing substantially with subject-matter, it is sufficient in so far as judicial department is concerned (Const. 1890, section 71).
3. INDICTMENT AND INFORMATION.
Where record indicated defendant was aware he was being prosecuted under statute making robbery, or attempt at robbery, capital offense under certain conditions, indictment, though awkwardly worded, was sufficient (Code 1930, section 787; Laws 1932, chapter 328).
4. INDICTMENT AND INFORMATION.
In robbery prosecution, variance between indictment and proof respecting ownership of property defendant was attempting to obtain was waived, where objection was not taken until after verdict.
APPEAL from Circuit Court of Copiah County.
J.T. Armstrong, of Hazlehurst, and R.O. Arrington, of Crystal Springs, for appellant.
Upon the face of the indictment it was drawn under section 787 of the Code of 1930, and this appellant could not have been prosecuted or convicted and sentenced under any other section of the code.
The indictment follows almost the wording of the statute, charging "with intent to rob," and there is nothing in the indictment to indicate or put the defendant or his counsel upon notice that he was being prosecuted for a capital offense.
We insist again that the assault and battery as alleged in the indictment and as proven upon the trial being a completed offense that an attempt to commit some other crime, as alleged in the indictment, to-wit, "to rob, steal and carry away the property of C.M. Huber," became merged into the crime of assault and battery with intent.
The crime as alleged and charged was complete and there could be no conviction for an attempt under this section nor under the indictment, because the crime was complete.
Where a crime was actually committed prosecution for an attempt is not proper.
Davis v. State, 89 Miss. 21, 42 So. 542.
Chapter 328 of the Laws of 1932 is unconstitutional. This chapter is void and unconstitutional, because it violates section 61 of the Constitution of the State of Mississippi.
No law shall be revived or amended by reference to its title only, but the section or sections as amended or revived shall be inserted at length.
Sec. 61, Const. 1890; State v. Cresswell, 117 Miss. 795; State v. Jackson, 119 Miss. 727; Buford v. State, 146 Miss. 66.
The act is not complete within itself. The intent and purpose of the Legislature was not to define a new and distinct crime under the laws of the state, but was intended to increase the punishment.
It will be noted that the title to the act only deals with the completed offense of robbery, and says nothing with reference to the attempt to rob. Under the facts in this case there could be no contention that the offense of robbery was committed. The most that could be said is there was an attempt to commit the offense of robbery.
It is the contention of the appellant that so far as the offense of attempting to commit robbery is concerned there is no title to the act, and the act, so far as the attempt to commit robbery, is concerned, is therefore void and unconstitutional.
Mayor v. State, 102 Miss. 663; Levee Commissioners v. Insurance Company, 96 Miss. 834; Section 1126, Code of 1930.
J.W. Cassedy, of Brookhaven, and W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is obvious that the law, chapter 328, Laws of 1932, provides for the prosecution and punishment of the crime of attempted robbery by the exhibition of a deadly weapon. This statute also provides that the jury may fix a death penalty.
There is but little difference between the crime of assault with intent to rob, and an attempt to rob. In the assault with intent to rob, there is an additional element of present ability. It would serve no good purpose for the court to draw such a fine distinction between an attempt to commit an offense, and an assault with intent to commit the offense. Such a distinction would result in permitting criminals to escape the punishment intended by the law. This indictment may charge an assault with intent to rob, but it certainly does charge the crime of attempt to rob by the exhibition of a deadly weapon.
All assaults to commit felonies can be prosecuted as attempts.
People v. Burns, 138 Cal. 159, 69 P. 16; 70 P. 1087, 60 L.R.A. 270; People v. Lee Kong, 95 Cal. 66, 30 P. 600, 17 L.R.A. 226.
Chapter 328, Laws of 1932, is an original and independent law complete in itself so far as it applies to the crime of robbery and attempted robbery by the exhibition of a deadly weapon and requires no other statute to render it intelligible and to know its meaning. Therefore, chapter 328, does not fall within the meaning of the constitutional provision prohibiting amendment by reference to the title only, and requiring statutes amended to be published in full as amended.
Buford v. State, 146 Miss. 66, 111 So. 850; People v. Tokoley, 144 N.E. 808, 318 Ill. 177; People v. Stokes, 281 Ill. 159, 118 N.E. 87; People v. Andrum, 286 Ill. 319, 121 N.E. 579; State v. Milauskas, 319 Ill. 198, 149 N.E. 294; Gallovach v. People, 68 Colo. 299, 189 P. 34; In re Dietrick, 32 Washington 471, 73 P. 506; State v. De Hart, 109 La. 570, 33 So. 605; State v. Cunningham, 58 So. 559; State v. Gerhardt, 44 N.E. 469.
Where an act is passed as original and independent legislation and is complete in itself so far as it applies to the subject matter properly embraced within its title, and requires no reference to any other statute to render it intelligible and to determine its meaning and scope, it does not fall within the spirit or meaning of the constitutional provisions prohibiting amendment by reference to title only, and requiring statutes amended to be reenacted and published in full as amended.
59 Corpus Juris, p. 869, sec. 454; Miller v. Lamar L. Ins. Co., 131 So. 282, 158 Miss. 753; Hart v. Backstrom, 113 So. 898, 148 Miss. 13; Heidelberg v. Batson, 81 So. 225, 119 Miss. 510; Magee v. Lincoln County, 68 So. 76, 109 Miss. 181; 25 Ruling Case Law, p. 874, sec. 119.
It is a well settled rule that, where a statute prohibits a particular act, and imposes a penalty for doing it, and subsequent statute, imposes a different penalty for the same, or practically the same, offense, the latter statute repeals the former, and this whether the penalty is increased or diminished.
59 Corpus Juris, p. 938, sec. 551; 59 Corpus Juris, p. 916, sec. 517; Stingley v. City of Jackson, 104 So. 46.
A penal act may create more than one offense without violating a constitutional provision that no act should embrace more than one subject if its title is broad enough.
59 Corpus Juris, p. 824, sec. 402; State v. Harwick, 133 La. 545, 63 So. 166.
In the last two or three years, the crime of robbery or attempts at robbery by the use and exhibition of deadly weapons in the hands of the offender had become so frequent and had so often been attended by homicide or serious injuries that the Legislature determined at its 1932 session to deal with this problem by a new statute making such an offense capital in the discretion of the jury, and hence there was enacted at said session chapter 328, Laws 1932, approved May 5, 1932, which, with its caption, reads as follows:
"An act to make robbery a capital offense under certain conditions and to fix the penalty upon conviction for a violation of this act.
"Section 1. Be it enacted by the Legislature of the state of Mississippi, that every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years.
"Section 2. That the passage of this act shall not be held to repeal any existing criminal statute of the state.
"Section 3. That this act shall take effect and be in force from and after its passage."
On Saturday night, September 17, 1932, appellant entered the store building of the Merchant's Grocery Company, in Crystal Springs, through a window which opened into the office in said building. Appellant had disguised himself, and upon entrance held in his hand and exhibited a deadly weapon, to-wit, a pistol. The only person in the office in the building at the time was Mr. C.M. Huber, one of the officers of the grocery company. Appellant presented the pistol and ordered Huber to give over his money, and threatened to kill Huber unless the demand was complied with at once. Huber stated to him that the money was in a desk drawer in another part of the building, and offered to comply with the threatening demand by going to the desk and there making delivery of the money, and, without delay, Huber, who was unarmed, started backing away from the intruder and towards the desk. Appellant followed closely, keeping Huber covered with the pistol, until the desk was reached, at which time Huber pulled out the drawer which contained the money, immediately upon the doing of which appellant shot Huber twice and thereupon fled. Appellant admitted on the stand, as a witness, all the facts aforesaid, and gave as his only excuse for shooting Mr. Huber that he thought that, when Mr. Huber pulled out the money drawer, Huber was attempting thereby to get hold of a weapon. The testimony discloses that Huber had no such purpose, and that there was nothing in what was done by him which would reasonably indicate any such purpose. And we say this without any intimation that, had Mr. Huber so attempted, it would have been any defense to appellant. Although seriously and dangerously wounded, Mr. Huber survived, and appellant was indicted, tried, and convicted under the quoted statute, and the jury fixed the penalty at death.
Appellant contends that for two reasons the statute is unconstitutional. He contends, first, that the statute is violative of section 61 of the Constitution which provides that "no law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length." It is the argument of appellant that no new or distinct crime was intended to be defined, but that the intent was simply to increase the punishment for crimes of that nature already covered by existing statutes. We do not agree with this contention, but are of the opinion that the statute in question was intended to, and did, compose a new and independent enactment, complete in itself, and that it requires no reference or resort to any other statute to render it intelligible and to determine its meaning and the scope of its operation. This, under all the authorities, takes the statute entirely out of and beyond the purposes of section 61 of the Constitution. And see City of Jackson v. Bank Trust Co., 160 Miss. 752, 764, 133 So. 195, and the authorities therein cited.
Appellant's second constitutional contention is that the statute is invalid, because it has no sufficient title, and appellant cites section 71 of the Constitution, which ordains that "every bill introduced into the legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation." This question was definitely dealt with and ruled upon adversely to appellant's contention in Yazoo County v. Warren, 158 Miss. 323, 130 So. 287, wherein it was held that the sufficiency of the title is a legislative and not a judicial question, and, that, if there be a title, and that title deals substantially with the subject-matter of the act, it is sufficient in so far as the judicial department is concerned.
Appellant complains that the indictment is insufficient to bring the conviction within the new statute, but that rather the language would indicate that it was drawn under section 787, Code 1930. We must agree that the indictment is awkwardly worded and falls short of being a perfect example of legal workmanship; at the same time, however, it contains every essential averment under the new statute, and the course of the trial, including the requests for instructions on the part of appellant, shows that appellant was throughout the trial fully aware that he was being prosecuted under the new enactment. See State v. Ingram (Miss.), 146 So. 638. There is indeed a variance between the indictment and proof in respect to the ownership of the property which appellant was attempting to obtain, but objection was not taken upon this point until after verdict, which, under Horn v. State (Miss.), 147 So. 310, was too late, and amounted to a waiver. We do not decide, and express no opinion, whether under the new statute the property taken or attempted to be taken must be that of the person alleged in the indictment to be the owner; we say only here that, if the variance be material, it has been waived in this case.
We have carefully examined the other assignments, and find none which we can or ought to sustain. In respect to instruction No. 2 granted to the state, we do not hold that the law was therein accurately stated, but, this instruction being upon the question of punishment and not on the merits, and all the jurors having agreed on the punishment, the error, if any, was wholly harmless.
Affirmed, and Friday, July 14, 1933, is fixed as the day for the execution of the judgment and sentence.