Opinion
No. 7,755.
Submitted April 23, 1938.
Decided May 4, 1938.
Criminal Law — Reckless Handling of Explosives — Accessories After Fact — Information — Insufficiency — Statutes and Statutory Construction — Misdemeanors and Felonies. Criminal Law — Accessory After Fact — Information — When Insufficient. 1. The question of the sufficiency of an information charging one as an accessory to the commission of an offense in that he harbored and protected another with full knowledge that such other had committed a crime, under section 10733, Revised Codes, defining accessories, depends upon whether the crime alleged to have been committed by the one so harbored or protected constituted a felony; if the offense amounted to no more than a misdemeanor, the pleading is vulnerable to a demurrer. Same — Reckless Use of Explosives — Accessories — Statutes — Insufficient Information. 2. An information charging one as an accessory of another in the violation of the provisions of section 2812, Revised Codes, prohibiting the reckless use of highly explosive substances by which others may be endangered, held insufficient under rule 1 above, such offense being declared by that section as a misdemeanor; the contention of the state that since by section 2813, a part of the same Act, a violation of any provision of the Act is made punishable by imprisonment in the state penitentiary, the offense becomes a felony, not being meritorious. (See paragraphs 4 and 5.) Same — Misdemeanors — Punishment — Statute Held Applicable to Acts Made Misdemeanors After Passage. 3. Held, that section 10725, Revised Codes, providing that, except in cases where a different punishment is prescribed, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months or a fine not exceeding $500, is applicable to acts made misdemeanors after its passage. Statutes and Statutory Construction — General and Special Provisions. 4. Where general terms in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions must govern notwithstanding the general provision is broad enough to include the subject to which the particular provisions relate; the particular provisions should be regarded as exceptions to the general provision so that both may be given effect. Criminal Law — Reckless Use of Explosives — Punishment — Statute Controlling. 5. In application of the last above rule to sections 2806-2814, Revised Codes, regulating the handling of explosives and parts of the same Act, held that section 2813 declaring penalties is a general provision, that sections 2812 and 2814 must be regarded as exceptions thereto, and that therefore section 2812, involved in the instant case, is controlling as to the gravity of the offense committed. Same — Assault in Second Degree — Information — What Insufficient. 6. In charging the crime of assault in the second degree, which under section 10977, Revised Codes, is the willful or wrongful wounding or inflicting grievous bodily harm upon another, either with or without a weapon, the use of the word "feloniously" does not take the place of "wilfully" or "wrongfully."
Appeal from District Court, Lincoln County; J.E. Rockwood, Judge.
Mr. Thomas D. Long, County Attorney of Lincoln County, for Appellant, submitted a brief and argued the cause orally.
Messrs. Walchli Korn, for Respondents, submitted a brief; Mr. Hans Walchli argued the cause orally.
It is proper that the writer of this brief advise the court that the Attorney General does not agree with the county attorney's opinion as expressed herein, and for that reason does not wish to appear as counsel in the case, but at the same time has courteously authorized the appeal to be taken and the brief written and the case orally argued by the writer.
The only question in this case is whether a person who violates the provisions of section 2812, Revised Codes, is guilty of a felony or a misdemeanor.
Sections 2806 to 2814, inclusive, of the 1935 Codes, are the same as sections 707 to 715 inclusive, of the Penal Code of 1895, except that section 712 of the latter Code was amended in 1897 to read as it is now in section 2811. Sections 707 to 715 inclusive, Penal Code of 1895, are identical with the sections in Senate Bill No. 57 which was enacted by the Fourth Legislative Assembly (1895).
Senate Bill No. 57 is not a part of the 1895 Code but is an amendment thereto. (See Steele v. Gilpatrick, 18 Mont. 453, 45 P. 1089; Campana v. Calderhead, 17 Mont. 548, 549, 44 P. 83, 36 L.R.A. 277; Proctor v. Cascade County, 20 Mont. 315, 316, 50 P. 1017; Jobb v. County of Meagher, 20 Mont. 424, 429, 51 P. 1034; Penwell v. Board of County Commrs., 23 Mont. 351, 357, 59 P. 167; King v. Pony Gold Min. Co., 24 Mont. 470, 478, 62 P. 783; State ex rel. McGinniss v. Dickinson, 26 Mont. 391, 393, 68 P. 468; State ex rel. Rocky Mt. Bell Tel. Co. v. Mayor of Red Lodge, 30 Mont. 338, 343, 76 P. 758.) Therefore, since sections 2806 to 2814, Revised Codes, 1935, were passed as sections 1 to 8 inclusive of Senate Bill No. 57 in 1895, they never were a part of the original 1895 Code, but are amendments thereto, and since section 2813 fixes the punishment for the offense defined in section 2812, our Code section 10725, which is the same as the original Code section 19 of the Penal Code of 1895, does not apply. Section 10725 provides: "Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or both."
The whole contention of defendant seems to be that inasmuch as section 2812 defines the offense as a misdemeanor without fixing any punishment in that section for the misdemeanor, the punishment is governed by section 10725. This argument must fall in face of the fact that the original Senate Bill No. 57 definitely fixes the punishment for the violation of section 2812 at imprisonment in the penitentiary not exceeding five years, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. In the case of Cashin v. Northern P. Ry. Co., 96 Mont. 92, 113, 28 P.2d 862, this court held that section 2813 prescribes the penalty for a violation of any provision of the Act in which section 2812 appears.
Rule for determining whether an offense is a felony or a misdemeanor: Section 10722, Revised Codes 1935, divides crimes into felonies and misdemeanors. Section 10723 defines a felony as a crime which is punishable with death or by imprisonment in the state prison, and says that every other crime is a misdemeanor. A person violating section 2812 may be punished by imprisonment in the penitentiary. Hence under the rule that "it is not the actual sentence, but the possible one, that determines the grade of the offense," ( Ex parte Rogers, 20 Cal.App.2d 397, 66 P.2d 1237, 1239) a person violating section 2812 must be guilty of a felony notwithstanding the fact that the legislature called the offense a misdemeanor.
The argument of counsel fails to take into consideration this rule for determining whether an offense is a felony or a misdemeanor. If this rule is good, it cannot be nullified by the legislature's calling an offense a misdemeanor when at the same time it imposes a possible penitentiary sentence. ( State v. Atlas, 75 Mont. 547, 552, 244 P. 477, the court, citing People v. Hughes, 137 N.Y. 29, 32 N.E. 1105; In re Stevens, 52 Kan. 56, 34 P. 459, 460; Ex parte Rogers, supra; People v. Kennedy, 21 Cal.App.2d 185, 69 P.2d 224.)
Section 7 of Senate Bill 57, our present section 2812, is the only section in that bill, and section 2812 is the only section in our present law relating to explosives, which contain the words "recklessly or maliciously." The gist of the offense under section 2812 is the reckless or malicious use of the explosives or the reckless or malicious manner in which the explosives are kept or handled. In this respect its violation is a graver crime than the violation of any of the other sections relating to explosive substances. Nevertheless, under defendant's argument, a person found guilty of violating any section other than section 2812 could be sent to the penitentiary for a period not exceeding five years, or if death ensued, he could be punished under section 2814 by imprisonment for a period not exceeding ten years in the penitentiary, but if he violated section 2812 he would be guilty of a misdemeanor only, and no matter what the consequences of his act might be, he could be punished only under section 10725 and fined not more than $500 or sent to jail for not more than six months, or both. This construction imputes to the legislature the intent to decrease the punishment as the gravity of the offense increased.
Section 2812 needs no construction. The language of the legislature is plain. It states the person violating the section "shall be guilty of a misdemeanor." The legislature repeated this assertion when it re-enacted the section into the Codes of 1907, 1921, and 1935. Not only by the original enactment, but by three subsequent codifications thereafter has the legislature clearly declared its intention, and thereby classed this offense as a misdemeanor. Nothing could be more clear. "The Court must construe the law as it finds it." ( Great Northern Utilities Co. v. Public Serv. Com., 88 Mont. 180, 293 P. 294; Montana Beer Retailers Protective Assn. v. State Board of Equalization, 95 Mont. 30, 25 P.2d 128.) "A statute which is plain in its language requires no construction, and plain meaning of words in a statute cannot be ignored." ( State ex rel. Nagel v. Sullivan, 98 Mont. 425, 40 P.2d 995, 99 A.L.R. 321; State v. Bowker, 63 Mont. 1, 205 P. 961.)
Section 2812, in so far as it prohibits the reckless or malicious use or handling of explosives, was not within the scope of the title to Senate Bill No. 57, and for that reason, its inclusion into that bill was unconstitutional and void, as violating section 23 of Article V of the Constitution, requiring the Act to clearly specify the subject of the bill ( Cashin v. Northern P. Ry. Co., 96 Mont. 92, at page 114, 28 P.2d 862). At best, section 2812 did not become a part of the law of this state until made so by legal enactment into the Codes subsequent to 1895. ( Cashin v. Northern Pacific Ry. Co., supra; State v. American Bank Trust Co., 75 Mont. 369, 243 P. 1093.)
From the foregoing, it follows that section 2812 did not become a part of the law of this state at least until the adoption of the Code of 1907, by Chapter 1, Laws of 1909, and further follows that when section 2813 was enacted it could have had no effect upon section 2812, because the latter section was not legally a part of that bill. When the legislature, by Chapter 1 of the Laws of 1909, legally enacted the Codes of 1907, containing what is now section 2812, it again used the language "shall be guilty of a misdemeanor," and for the first time, actually and legally enacted that section, and at a time when the Codes of this state for more than twelve years had contained section 19 of the Penal Code of 1895 prescribing the punishment for a misdemeanor where no other punishment was prescribed.
In view of the fact that the scope of the title of Senate Bill No. 57 was not broad enough to cover the provisions of section 6 of that bill, now section 2812, it is quite apparent that the insertion of that section into that bill was no doubt an afterthought and the same was inserted after the bill and its title had been prepared, and that the legislature, to protect against such insertion, wanted to be sure that the offenses prescribed by the section thus inserted, should be no greater than that of a misdemeanor, and expressly so stated, and wanted to and thereby did exclude it from the general penalty section, namely, section 7 of the bill, and being now section 2813.
We call attention to the fact that in this case, the defendant is charged as being an accessory to the felony of "the reckless and felonious use and handling of highly explosive substances," and as stated before, on account of the defective title to Senate Bill 57 this did not become an offense until at least the enactment of the Code of 1907 by Chapter 1 of the Laws of 1909.
We agree with the contentions of the county attorney that the enactments of the Legislative Assembly of 1895 must be deemed as subsequent to and amendments of the Code. We also agree with his contention that under the provisions of section 10723, defining a felony and misdemeanor, a felony cannot be reduced to a misdemeanor until after judgment imposing the punishment, and that all portions of Senate Bill 57, to which penalty section 7 of that Act is applicable, are of the grade of felonies until the fixing of the misdemeanor punishment. We contend, however, that both of those propositions are not material to the case at bar.
The county attorney relies almost entirely upon the case of State v. Atlas, 75 Mont. 547, 244 P. 477. That case sustains rather than contradicts the defendant's contention in the case at bar. When the legislature intends to charge a felony it does not use the words, "shall be guilty of a misdemeanor." Neither is there anything in the case of Cashin v. Northern Pacific Ry. Co., supra, tending to sustain his contentions. We do call the court's attention, however, to the language used by it in that case in referring to section 2812, at the bottom of page 113 as reported in 96 Montana:
"Whatever may have been the original intention of the Legislature back in 1895, in enacting what is now Section 2812, above, the language of that section is clear and unambiguous and does not permit resort to the cause of construction."
Defendant was charged by information with the crime of being an accessory to the commission of an offense by Earl Maken. The information charged that Maken had committed a felony by the reckless and felonious use and handling of highly explosive substances, whereby the life and limb of a human being were endangered, and that defendant here, knowing that fact, did unlawfully and feloniously receive, harbor, and protect Maken. By demurrer defendant challenged the sufficiency of the information and the jurisdiction of the court. The demurrer was sustained, and the state appealed.
The charge against Maken, the principal, is conceded to be for [1-3] violation of section 2812, Revised Codes, reading as follows: "Every person who shall recklessly or maliciously use, handle, or have in his or her possession any blasting powder, giant or Hercules powder, giant caps, or other highly explosive substance, whereby any human being is intimidated, terrified, or endangered, shall be guilty of a misdemeanor."
Section 10733, Id., provides: "All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor or protect the person charged with or convicted thereof, are accessories."
Hence, whether the information is sufficient to charge defendant as an accessory depends upon whether the crime denounced by section 2812 is a felony or a misdemeanor.
It will be observed that section 2812 expressly states that the crime therein defined is a misdemeanor. The state contends, however, that because of section 2813 which was enacted at the same time as section 2812, the violation of section 2812 constitutes a felony. Section 2813 reads: "Any person, or association of persons, violating any of the provisions of this Act, shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment."
When sections 2806 to 2814 were enacted, section 10725 was in full force and effect, reading: "Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or both." This section is applicable to acts made misdemeanors after its passage. ( Oligschlager v. Territory, 15 Okla. 141, 79 P. 913.)
Hence, the controlling question here is: What penalty does the [4, 5] offense embraced in section 2812 carry? If the penalty is that prescribed by section 10725, then the offense is a misdemeanor, whereas, if the penalty provided for in section 2813 controls, then the offense is a felony. (Sec. 10723.) If the penalty is that prescribed in section 10725, then the information is insufficient.
As an aid in ascertaining the legislative intent, another section of the statute, 2814, is helpful. That section provides: "When the death of any person is caused by the explosion of any powder, gunpowder, giant or Hercules powder, giant caps, or other highly explosive substance that has been stored, kept, handled, or transported, contrary to the provisions of the foregoing sections, the person or persons who have so unlawfully stored, kept, handled, or transported such explosives, or who may have knowingly or negligently permitted their agents, servants, or employees to so unlawfully store, keep, handle, or transport the same, shall be guilty of manslaughter, and, on conviction, shall be punished by imprisonment in the state penitentiary for a period not exceeding ten years." Other provisions of the statute — sections 2806 to 2811, inclusive — declare certain acts unlawful to which the penalty provided in section 2813 applies.
If section 2813 is given its literal meaning, it conflicts with section 2812. In such a situation our duty is declared in 59 S.J., p. 1000, as follows: "General and special provisions in a statute should stand together, if possible, but where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions must govern, unless the statute as a whole clearly shows the contrary intention and they must be given effect notwithstanding the general provision is broad enough to include the subject to which the particular provisions relate. The particular provision should be regarded as an exception to the general provision so that both may be given effect." We gave recognition to this rule, under facts not wholly dissimilar to those here, in City of Bozeman v. Merrell, 81 Mont. 19, 261 P. 876.
Applying this rule of construction to the statutes under consideration here, we must hold that both sections 2812 and 2814 are special provisions covering the offenses defined in each. Section 2813 is a general provision. Sections 2812 and 2814 are to be regarded as exceptions to the general provisions of section 2813. It follows that the crime denounced in section 2812 is a misdemeanor, with punishment controlled by section 10725, and is not a felony.
Counsel representing the state asserts in his brief that he concedes that the complaint against Maken is based upon section 2812; hence our inquiry is limited to that question, and we express no opinion as to whether the complaint against Maken may be sustained as for a second degree assault under section 10977, which is a felony.
The complaint against Maken is not before us. Presumably it was before the trial court, and that court in ruling upon the information here made this statement: "In my opinion the information cannot be amended. The offense with which Earl Maken has been charged and which is founded upon section 2812, R.C.M. 1935, is not a felony but a misdemeanor." Hence, we must, so far as the question now before us is concerned, treat the charge against Maken as based upon section 2812, and not upon second degree assault. From the information against defendant here it appears that a human being was severely injured as a result of the "reckless and felonious use and handling [by Maken] of highly explosive substances."
Assault in the second degree under section 10977 is [6] accomplished by one who "wilfully or wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon." The use of the word "feloniously" in describing the acts of Maken will not take the place of the words "wilfully" or "wrongfully" in charging the crime of second degree assault as defined in subdivision 3 of section 10977. (5 C.J. 766.) It may be that the acts of Maken constitute a felony under subdivision 3, section 10977, if properly charged; a point we do not now decide.
The judgment is affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur.