State v. Walters

66 So. 364, 135 La. 1070, 1914 La. LEXIS 1881

• Court: Supreme Court of Louisiana
• Decided: June 29, 1914
• Docket: No. 20687
• Status: Published

Opinions

LAND, J.

The defendant was charged with kidnapping a male child less than 14 years of age, under Act 271 of 1910, was found guilty without capital punishment by the jury, and sentenced to the state penitentiary for the term of his natural life.

Defendant has appealed, and relies for reversal on six bills of exceptions, which we will consider in reverse order. Bill No. 6 was taken to the overruling of the motion in arrest of judgment.

[1] The argument of defendant’s counsel in support of the motion reads as follows:

“Motion in Arrest of Judgment.

“The motion in arrest of judgment is based upon the alleged unconstitutionality of the statute under which defendant was prosecuted and convicted.

“Under the Revised Statutes of 1870, there are two sections dealing with the crime of kidnapping. They are sections 805 and 806, and read as follows:

“ ‘Sec. 805. Whoever shall forcibly seize and carry out of this state, or from one part of this state to another, or shall imprison or secrete, any person without authority of law; and all persons aiding, advising and abetting therein, on conviction, shall be imprisoned at hard labor or otherwise, for a period not exceeding five years, at the discretion of the court.

“ ‘Sec. 806. Whoever shall take, with or without his consent, any male child under the age of fourteen years, or any female child under the age of twelve years, from the custody of his or her parent, tutor or guardian, without authority of law, and all persons aiding, advising or abetting therein, on conviction, shall be imprisoned, at hard labor or otherwise, for a period not exceeding five years.’

“Section 305 was amended and re-enacted by Act 86 of 1908, page 105. The only substantial change was the increasing of the. maximum penalty from five to twenty years imprisonment with or without hard labor. •

“In 1910 another act was passed. It was designated as No. 271, and is to be found at page 470 of the official acts for that year. It reads as follows:

“ ‘An act to amend and re-enact section 805 of • the Revised Statutes of Louisiana, to define the crime of kidnapping, and to prescribe a penalty therefor.

“ ‘Section 1. Be it enacted by the General Assembly of the state of Louisiana, that Act 86 of the Acts of the General Assembly for the year 1908, amending and re-enacting section 805 of the Revised Statutes of 1870, be amended and re-enacted so as to read as follows:

“ ‘ “Sec. 805. That whoever shall forcibly seize, take and carry out of this state, or from any part of this state to another, any male child under the age of fourteen years, or any female child under the age of twelve years, from the custody of his or her parent or parents, tutor or guardian, without authority of law, and all pel-sons aiding, advising or abetting therein, shall be guilty of the crime of kidnapping, and on conviction thereof shall suffer death.”

“ ‘See. 2. Be it further enacted, etc., that all laws or parts of laws contrary to or in conflict herewith be, and the same are hereby, repealed.’

“Article 31 of the Constitution reads as follows :

“ ‘Art. 31. Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in its title.’

“The motion in arrest of judgment alleges that said Act 271 of 1910 violates said article of the Constitution in three particulars, to wit:

“First. purports to amend section 805 of the Revised Statutes, when said section had already been amended, and no reference is made to the amendatory act in the title.

“Second. Because the title of the act is incorrect and misleading; and

among provisions portions of section 806 of the Revised Statutes.

“First.

“It is important to consider article 32 of the Constitution in connection with this- point. Said article reads as follows:

“ ‘Art. 32. No law shall be revived, or amended by reference to title; but in such cases the act revived, or section as amended, shall be reenacted and published at length.’

“Under this constitutional provision, whenever a statute is amended and re-enacted, the original is blotted out and extinguished and ceases to exist. Hence, in such case, when it is sought to amend and re-enact the new law, or the original statute, as amended and re-enacted, article 31 of the Constitution is not complied with when the title of the second amendatory act refers to the original and repealed statute as the one which it is intended to amend and re-enact.

“In Mouton v. City of Lafayette, 130 La. 1064, 58 South. 883, the point involved was this: The General Assembly at the regular session of 1910 passed two acts purporting to amend- and re-enact section 2 of Act 30 of the Extra Session of 1877, as amended by Act 32 of 1902. They were Acts 128 and 270 of 1910. The latter made no reference to the former, and it was held to violate Articles 31 and 32 of the Constitution.

“In that case the court said:

“ ‘And plaintiff has invoked articles 31 and 32 of the Constitution, * * * which apply to the case, since a title, declaring the object of an act-to be to amend and re-enact one statute, can .[cannot] be said to declare such object to be to amend and re-enact another and later statute.’

“This language applies with full force to the case at bar and is decisive of it.

“In considering the point here made, decisions from other states should be received with great caution. Thus in 36 Cyc. 1055, it is said:

“ ‘An amendatory statute, which attempts to amend a t section which has already been amended and repealed by implication, is void. But, in the absence of constitutional prohibition, the better rule has been held to be that an amendatory statute will be upheld, although it purports to amend a statute already amended, or which for any reason has been declared invalid.’ (Our italics.)

“Note that in the absence of constitutional prohibition some courts hold that an amendatory statute which attempts to amend a section which has already been amended and repealed by implication is void; but, in the opinion of the" author of the Cyc. article, the better rule under such circumstances is that the amendatory statute should be upheld. Whatever may be the merits of that controversy, with us the question is settled in favor of the first view by article 31 of the Constitution. Mouton Case,

“Title of Act Incorrect and Misleading.

“It reads as follows:

“ ‘An act to amend and re-enact section. 805 of the Revised Statutes- of Louisiana, to define the crime of kidnapping, and to prescribe a penalty therefor.’

“The body of the act purports to amend and re-enact said section as amended and re-enacted by Act 86 of 1908.

“Now, said section as thus amended provides:

“ ‘Whoever shall forcibly seize and carry out of this state, or from one part of this state to another, or shall imprison or secrete any person without authority of law,’ etc.

“Act 271 of 1910 provides:

“ ‘Whosoever shall forcibly seize, take and carry out of this state, or from any part of this state to another, any male child under the age of fourteen years, or any female child under the age of twelve years, from the custody of his or her parent or parents, tutor or guardian without authority of law,’ etc.

“A' comparison of the two statutes will show that the latter drops the clause ‘or shall imprison or secrete,’ contained in the former, and substitutes ‘any male child under the age of fourteen years, or any female child under the age of twelve years, from the custody of his or her parent or parents, tutor or guardian,’ for the_ ‘any person’ of the former. The result of this, if the statute were constitutional, would be that after its adoption it would no longer be a crime to ‘imprison or secrete any person without authority of law,’ or to forcibly seize and carry out of this state, or from any part of this state to another, any male child not less than 14 years of age, or any female child not less than 12 years of age, from the custody of his or her parent or parents, tutor or guardian, without authority of law.

“A further comparison of the two acts will show that under the former the penalty was imprisonment, ‘at hard labor or otherwise, for a period not exceeding twenty years, at the discretion of the court,’ whereas under the latter it is death. Hence, as stated in our motion in arrest of judgment, the title of the latter act should have been:

“ ‘An act to abolish the crime of kidnapping as to all persons except male children less than fourteen years of age, and female children less than twelve years of age, and to make the penalty for the kidnapping of such children death.’

“Jones must have had such a title in mind when, in Statute Law Making, after discussing titles too broad and too narrow under constitutional provisions, such as article 31 of our Constitution, he says at page 74:

“ ‘The inclusion of misleading statements as to the scope of the bill, or failure to cover its real scope, puts the whole bill in a doubtful position before the courts.’ (Our italics.)

“Third.

“Section 805 of the Revised Statutes made it a crime to kidnap any person under the circumstances stated in that section, while section 806 made it a crime to kidnap certain designated persons under other and different circumstances. Now, Act 271 of 19.10, under the guise of amending and re-enacting- section 805, makes it-a crime to kidnap the particular persons designated in section 806 under some of the circumstances previously designated in section 805.

“The act, therefore, suppresses a part of section 805, and in lieu of a part of that which was suppressed supplies a portion of section 806. This was an attempt to make a law consisting of parts of two sections under the guise of amending one. This, under article 31 of the Constitution, could not be done.

“In State v. Sugar Refining Co., 106 La. 553, 31 South. 181, it was held that a statute the object of which it was declared in the title was to amend and re-enact section 10 of a pri- or statute violated said article of the Constitution when it incorporated in the new section 10 parts of the provisions of section 11 of the prior statute.

“In Wisner’s Curator v. Mayor and City Council of Monroe, 25 La. Ann. 598, the syllabus reads in part as follows:

“ ‘Under a title purporting to amend only the first section of a statute, it is not competent to amend other sections of said act. Such amendments, not being covered by the title, are null and void, because made in violation of article 114 of the Constitution.’

“The Constitution referred to is that of 1868, and article 114 thereof reads:

“ ‘Every law shall express its object or objects in its title.’

“This provision, it will be observed, is different from article 31 of the Constitutions of 1898 and 1913, or article 29 of the Constitution of 1879, article 118 of 1864, article 115 of 1852, and article 118 of 1845. The provisions of the various Constitutions cited provide, not only that the object of the act shall be stated in the title, but that the act shall not have more than one object. They are, therefore, more restrictive on the General Assembly than article 114 of the Constitution of 1868, which merely provided that the object or objects of every law should be expressed in its title. Yet, even under that more liberal constitutional provision, the court held in the Wisner Case, supra, that a statute was null and void which, under a title purporting- to amend and re-enact one section of a prior act, went further and attempted to amend other sections of said act.

“It seems clear, therefore, that when Act 271 of 1910 attempted to amend both sections 805 and 806 under a title purporting to amend section 805 only, it ran counter to article 31 of the Constitution of 1898, which was then in force, and is therefore null and void.

“The statute itself is absurd. This is a harsh term, but, if anything, it is not strong-enough to fittingly characterize a statute which imposes the death penalty for kidnapping a male child less than 14 years of age, or a female child less than 12 years of age, but imposes no penalty at all, and wipes out an existing penalty, for kidnapping any male person not less than 14 years of age, or any female person not less than 12 years of age.

“The court should have no compunctions whatever in declaring the act unconstitutional, since the effect would be to leave the original statutes unaffected. Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464, 58 L. Ed. 803.

“Should the court decide that Act 271 of 1910 is unconstitutional, as it no doubt will, the defendant should be discharged. This, of course, would leave him subject to reindictment under the Revised Statutes,- section 806, or section 805, as amended by Act 86 of 1908. Constitution, art. 9.

“We do not think that the indictment in this case could possibly be held to be a good and valid indictment under either section 805 of the Revised Statutes, as amended by Act 80 of 1908, or under section 806; but, even if it could, the conviction of defendant in this case could not be upheld under those laws, because the penalty under them is imprisonment with or without hard labor. The tribunal to try such offenses is a jury of 5, whereas defendant was tried for a capital offense, the tribunal for the trial of which is a jury of 12. Constitution, art. 116.

“Now, since defendant was tried and convicted by a jury of 12 (Tr. pp. 2, 11, 20, 143), under Act 271 of 1910, he was tried and convicted by a tribunal which had no jurisdiction, if said act is unconstitutional, and the verdict, as well as the sentence, would necessarily have to be set aside.”

The foregoing argument presents, not only an able exposition of the constitutional questions involved in the decision of this case, but also contains a just criticism of the provisions of Act 271 of 1910, as repealing all the prior legislation against kidnapping, and limiting the offense to the forcible seizure and carrying out of the state, etc., of boys under 14 years of age and girls under the age of 12 years.

Act 271 of 1910 has the same title as Act 86 of 1908. We cannot conceive how the title of an act passed in 1908 can express the object or purpose of an act amendatory thereof, passed in 1910.

The object or purpose of Act 271 of 1910 is thus expressed in section 1:

“Be it enacted by the General Assembly of the state of Louisiana, that Act 86 of the Acts of the General Assembly for the year 1908, amending and re-enacting section 805 of the Revised Statutes of 1870, be amended and reenacted so as to read as follows.”

This sole object or purpose is not expressed in the title of the act, and it is therefore manifest that Act 271 of 1910 violates article 31 of the Constitution, which imperatively requires that the object of an act “shall be expressed in its title.”

If Act 271 of 1910 had ignored Act 86 of 1908, and had amended and re-enacted section 805 of the Revised Statutes, the Alabama cases cited by counsel for the state might apply. The gist of those cases is stated in plaintiff’s brief as follows:

“In Alabama, where a constitutional provision exists similar to our article 31, it has been held as settled that the Legislature may amend an original act or statute which has been amended, and disregard an intervening amendatory act.”

To the same effect is State National Bank v. City of Memphis, 116 Tenn. 641, 94 S. W. 606, 7 L. R. A. (N. S.) 663, 8 Ann. Cas. 22.

But Mouton v. City of Lafayette, 130 La. 1064, 58 South. 883, holds that, where the original law has been amended and re-enacted at length, it is merged in the later act. The same doctrine is held in the recent case of State of Louisiana v. W. C. Nelson, 65 South. 893,¹ No. 20475 of the docket of this court. The logical result is that the old law, having ceased to exist, cannot be amended. But none of the cases cited supra apply to Act 271 of 1910, where the object or purpose to amend a particular statute is not expressed in the title.

A comparison of the provisions of Act 271 of 1910 with those of sections 805 and 806 of the Revised Statutes will show that the framers of that act amended both sections, without mention of section 806 either in the body or title of the act.

Section 805 is a general law against the forcible kidnapping of any person. Section 806 is a special law against the talcing of, with or without his consent, “any male child under the age of fourteen years or any female child under the age of twelve years, from the custody of his or her parent, tutor or guardian without authority of law.”

Act 271 of 1910 amends and re-enacts section 805, so as to make the crime of kidnapping punishable only when perpetrated against children of tender years, as set .forth in section 806. In fact, Act 271 of 1910 contains a mélange of some of the provisions of both sections, with a substitution of the death penalty for imprisonment at hard labor. As Act 271 amends section 806, and no such purpose or object is expressed either in the body or title of the act, the statute violates article 31 of the Constitution.

It is therefore ordered that Act No. 271 of 1010 be declared unconstitutional, null, and void; and it is further ordered that the verdict and sentence against the accused be set aside, and that he be discharged from further prosecution under said statute.

1 Ante, p. 678.