Gustin v. State

99 So. 54, 19 Ala. App. 558, 1924 Ala. App. LEXIS 26

• Court: Alabama Court of Appeals
• Decided: February 5, 1924
• Docket: 7 Div. 935.
• Status: Published

Opinion

FOSTER, J.

The indictment conforms substantially to the act of the Legislature of Alabama, approved August 31, 1915:

“To prohibit the obtaining of money, property,, or thing of value, or the making, uttering or delivery of any check, draft, or order in payment of any obligation, with intent to defraud,” etc. Acts 1915, p. 319.

The.indictment was returned into court on April 23, 1921. On August 21, 1922, the defendant filed a motion to quash the indictment, averring as a ground therefor that the statute under which the indictment was 'found had been expressly repealed by an act of the Legislature of Alabama, approved November 21, 1921. On August 26, 1922, defendant filed demurrer to the indictment assigning substantially the same ground as set up in the motion to quash. The motion and demurrer were overruled by the court.

The question presented is whether the act of 1915, supra, was repealed by the act approved November 21, 1921. The title of the act is:

“To make it unlawful for any person to obtain money or other property or credit by check, draft or order which is not paid by the drawee,” etc. Acts Sp. Sess. 1921, p. 47.

The latter act expressly repeals all laws or parts of laws in conflict with its provisions.

The prosecution in the instant case is based upon the fraudulent issuance of a check for less than $30, and is a misdemeanor under the act of 1915, supra, and a misdemean- or under the act of 1921, supra.

[1] The portion of the act of 1915, supra, applicable to the prosecution in this case is not in conflict with any of the provisions of the act of 1921, supra, and is not repealed by said act.

•[2, 3) Repeal of statutes by implication is not favored, and unless there is a real repugnance, and no reasonable field for the operation of both statutes without displac ing the provisions of either, the conclusion is that the Legislature intended both statutes to be in force; and, if there is actual conflict as to only a part of the provisions of the older statute, the repeal is only pro tanto. Abernathy v. State, 78 Ala. 413; Herr v. Seymour, 76 Ala. 270. A statute merely changing the mode of punishing particular offenses, limited in its operation to the future, not referring to a former statute prescribing other punishment, will not operate to repeal the former statute in its operation on offenses committed prior to the enactment of the new statute. Moore v. State, 40 Ala. 49; Miller v. State, 40 Ala. 54; Stephen v. State. 40 Ala. 67; Wade v. State, 40 Ala. 74; Magruder v. State, 40 Ala. 347.

[4] The motion for a new trial cannot be reviewed in the absence of a bill of exceptions. Johnson v. State, 205 Ala. 665, 89 South. 55.

No error is apparent in the record.

The judgment of the circuit court is affirmed.

Affirmed.