Full opinion text
PRENDERGAST, J. On March 5, 1909, the grand jury of McLennan county, in the Fifty-Fourth judicial district, returned into court an indictment against appellant, in which there were 13 separate and distinct counts in as many separate paragraphs, though none of them numbered. All of them are based on article 3S8b, of the Penal Code of 1895, as enacted by the Thirtieth Legislature, p. 107, charging in various forms under this article a violation thereof on or about February 24, 1909. Some of them are based on the allegation as to the whole of the Waverly Hotel; others as to room No. 1 in that hotel; and six of them as to room No. 6 therein. As stated in appellant’s brief, and as shown by the record, the appellant was convicted under count 3 thereof, which, after the necessary allegation as to the organization of the jury, etc., is; “And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to the court aforesaid that Harry Parshall did then and there unlawfully keep a room, to wit, room No. 6, in the Waverly Hotel, which said hotel is situated on South Third street, in the city of Waco, McLennan county, Texas, being numbered 215, for the purpose of being used as a place to gamble with cards.” The record in this case is quite voluminous ; a considerable portion of it is made up of motions, bills of exception, charges asked, and various other proceedings as to other counts than that upon which the conviction was had. After the state’s evidence was all in — the defendant introducing no evidence whatever — the court announced that only four of the several counts (those four pertaining to said room 6) would be submitted to the jury by his charge. The four counts so submitted by him were designated in the charge, not by giving any numbers thereof in the in: dictment, but by distinguishing them by the allegations thereof severally. It is plain, therefore, that the record contains a great deal of unnecessary and improper matter. It should have been confined to the specific count on which the conviction was had. On account of this state of the record, we have had considerable labor to hunt out therefrom the matters which are pertinent and necessary to be considered and passed upon in the disposition of this case. In the disposition thereof, we have not omitted any point rais.ed or question made that bears upon the various proceedings of the court on the count under which the conviction was had. While we will not discuss all of the questions raised, we will discuss and determine the material ones on which the disposition of the case depends and is made. 1. It is properly raised and claimed that the said act of the Legislature under which this conviction was had is unconstitutional, because it was passed by the Legislature in violation of article 3, § 30, of the Constitution, which is: “No law shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose.” In order to sustain this contention, one of appellant’s bills of exception shows what is claimed to be all of the entries in the House and Senate Journals about this bill, from the introduction thereof until the final passage and enrollment thereof, and the signature of the President of the Senate and Speaker of the House of Representatives. By this it is attempted to be shown that the original purpose of the bill as first introduced was amended in its passage through both houses, so as to change that purpose and thereby render it unconstitutional. The said bill of exceptions giving the proceedings of the two houses shows that both the title and body of the act were amended in various ways and in various stages of its passage by both houses, and additions also made thereto. Article 3, § 31, of the Constitution, says: “Bills may originate in either house, and when passed by such house may be amended, altered or rejected by the other.” It will be noted that neither of these provisions requires, nor both taken together require, that the journals of either house shall affirmatively show what the original purpose in any bill introduced is or shall be. There are in our Constitution several provisions prescribing rules of procedure for the enactment of laws by the Legislature, but which do not require that the journals shall affirmatively show that these rules are complied with by the Legislature, such as article 3, § 37, which says: “No bill shall be considered, unless it has been first referred to a committee and reported thereon, and no bill shall be passed which has not been presented and referred to and reported from a committee at least three days before the final adjournment of the Legislature.” And another, the one now under consideration, says: “ $ * * No bill shall be so amended in its passage through either house as to change its original purpose.” There are certain other constitutional provisions which positively require the journals to show certain facts, such as article 3, § 38, which is: “The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills * * * passed by the Legislature, after their titles have been publicly read before signing; and the fact of signing shall he entered on the joivrnals.” And article' 3, § 39, which provides that no law, except the general appropriation acts, shall take effect until 90 days after adjournment, unless in case of emergency, etc., the Legislature shall, by a vote of two-thirds of all elected members of each house, otherwise direct, “said vote to he talc-en hy yeas and nays, and entered wpon the journals.” The decisions by the courts of the different states of the United States show that they differ as to the construction of these two. characters of constitutional provisions. One construction is that only where such constitutional provision affirmatively requires the journals to show, given facts can they be looked to for the purpose of determining whether the Legislature has complied therewith or not, and holding that where a constitutional provision does' not affirmatively require that the journals shall show such given facts that the enrolled bill, filed in the office of the Secretary of State, which shows the signature of the respective presiding officers of each house and the signature of the Governor in approval, and the publication oft such act by the state, is absolutely conclusive upon the courts, and that the journals, nor any other extraneous evidence, can be resorted to for the purpose of determining whether the Legislature has complied therewith or not. The other construction is that the journals can and must be looked to to determine whether the Legislature has complied with every constitutional provision, even though such provisions do not require affirmatively that the journals shall show compliance therewith. Both this court and our Supreme Court, in well-considered opinions, have adopted that construction of the constitutional provision to the effect that where the Constitution does not affirmatively require the journals to show a given fact that the enrolled bill, properly attested by the presiding officer of each house of the Legislature, approved by the 'Governor, filed in the Secretary of State’s office, and published under the authority of the state as a valid act of the Legislature, is absolutely conclusive of the validity thereof, in accordance with the construction first mentioned just above. Tipton’s Case, 28 Tex. App. 438, 13 S. W. 610, 8 L. R. A. 326; Williams v. Taylor, 83 Tex. 672, 19 S. W. 156; Railroad v. Foth, 44 Tex. Civ. App. 275, 100 S. W. 170; s. e., 101 Tex. 133, 100 S. W. 171, 105 S. W. 322. The Supreme Court of the United States has also pointedly and clearly held this. Field v. Clark, 143 U. S. 672, 12 Sup. Ct. 495, 36 L. Ed. 294; Lyons v. Woods, 153 U. S. 649, 14 Sup. Ct. 959, 38 L. Ed. 854. The courts of the following states have also so held: California, Indiana, Kentucky, Mississippi, Montana, Nevada, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, Utah, and Washington. 36 Cyc. 972, note 7. We deem it unnecessary to quote the language of this court, our Supreme Court, the United States Supreme Court, or any of the decisions of the states cited, because they can readily be had and seen. Therefore, so far as this contention of the appellant is concerned, we hold that the act in question is clearly not in violation of our Constitution. 2. It is also contended by appellant that the said act of the Legislature is unconstitutional, in that article 3, § 38, just above mentioned, was violated, in that the journals of the Legislature do not show that the title of said act, as finally passed, was read in full at the time of the signature of the respective presiding officers of each house. Prom this provision of the Constitution it is seen that it does not require that the journals of the two houses shall affirmatively show w’hat the title of the bill enacted is or that the full title thereof was read. What it does affirmatively require is that the journals shall show only “the fact of signing.” This fact is clearly shown by the journals. The authorities above quoted are applicable also here, so that the said act is not violative of said article 3, § 38. 3. Again it is claimed by appellant that the said act of the Legislature is unconstitutional and void, because it is violative of article 3, § 35, of the Constitution. This exact question was before this court on this same statute, and was well considered and decided adversely to appellant’s contention in the case of Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736. The reports, both of this court and the Supreme Court, contain many decisions to the same effect as to other acts of the Legislature attacked on the same ground. We think it unnecessary to cite them, as we regard the question as settled, and this act is not violative of said section of the Constitution, as contended by appellant. 4. We come next to the consideration of one of the most difficult of the many difficult questions in this case. It is contended by appellant that the act of 1909, 31st Legislature, p. Ill, defining and punishing vagrancy, repeals said article 388b of the Penal Code, as enacted by the 30th Legislature, p. 107, Acts of 1907, or at least that it repeals that portion of said article 388b under which this conviction was had. It is unnecessary to copy these two acts, or either of them, as they are quite lengthy and can readily be referred to and seen. Article 3, § 46, of our Constitution, imperatively requires the Legislature to enact effective vagrant laws. This act of the 31st Legislature was passed in obedience to and in compliance with that provision of the Constitution. The title of it is, “An act to better define and punish vagrancy, prescribing the rules of procedure in the prosecution of vagrancy and fixing a punishment for vagrancy and repealing all laws and parts of laws in conflict herewith and declaring an emergency.” It is difficult sometimes to determine the scope, purpose, and object of a given statute. This act in question, however, is clear and explicit, for it expressly and plainly states in its title to be “to better define and punish vagrancy”; and in section 1, “the following persons are and shall be punished as vagrants;” and the emergency clause is, “the fact that there is no adequate law in this state to define and punish the offense of vagrancy,” etc., so that there can he and is no doubt of the scope, object, and purpose of this act. There are many rules laid down by the courts and text-writers to be. applied in the construction of statutes and the repeal thereof. There is practically no difference of opinion as to what these rules are. The difficulty lies in their proper application to the given statute. The fundamental rule for which all the others are made and applied is that in construing a statute the object is to ascertain and give effect to the intention of the Legislature. Our Supreme Court, in the ease of Edwards v. Morton, 92 Tex. 162, 153, 46 S. W. 792, 793, tersely and pertinently says: “The intention of the Legislature in enacting a law is the law itself.” To the same effect is the opinion of the United States Supreme Court in Frost v. Wenie, 157 U. S. 58, 15 Sup. Ct. 532, 39 L. Ed. 614, Atkins v. Feber, etc., Co., 85 U. S. 272, 21 L. Ed. 841. and Jones v. N. Y., etc., Co., 101 U. S. 622, 25 L. Ed. 1030. In fact, the courts of all the’ states, and the text-writers, in effect, all lay down the same rule. “A clause in a statute purporting to repeal other statutes, is subject to the same rules of interpretation as other enactments, and the intent must prevail over literal interpretation. Even words of absolute repeal may be qualified by the intention manifested in other parts of the same act.” 36 Cyc. 1069, and note 15. Generally a repeal is either by express words or by implication. There are many phases of a repeal to be considered, whether express or by implication. The common form of express repeal is where an act says in terms that such a statute, or clause of a statute, is repealed. “If, on the entire face of the repealing act, its intent is plainly less broad than particular words in it, such intent will prevail in the construction, and in all respects a repealing clause, like any other, will be rendered by the courts in the sense evidently meant by the repealing power.” Bish. on Stat. Crimes, § 151. “Not infrequently a clause is inserted in a statute repealing all laws in conflict therewith. If the provisions of the former and present enactments are in direct contrariety, the repeal takes place, but only to the extent of the repugnance. If, on the .other hand, by any reasonable contracting, expanding, cutting short, or ^extending of the old laws, or the new, they can be brought into harmony without repeal, the interpretation should be so, and all suffered to stand together.” Bish. on Stat. Crimes, § 152. Another rule is that: “Every statute is to be construed with reference to the general system of laws of which it forms a part, and its meaning and effect is to be determined in connection with other statutes on the same subject, and, under certain circumstances, with statutes on cognate, and even different, subjects.” 36 Cyc. 1144-1146. Now, applying these general rules, and others applicable, though unnecessary to cite, let us determine whether this vagrancy act in question, which makes vagrancy a misdemeanor and fixes the punishment at a fine not to exceed $200, repeals either the whole of said article 388b of the Penal Code, or that particular provision thereof under which the appellant was ..convicted in this case. This state has for many years had laws in force under different titles, chapters, and articles of the Penal Code and under the respective subjects, defining theft and receiving and concealing stolen property and fixing a punishment for these offenses; also laws punishing persons for unlawfully selling vinous, alcoholic, malt, intoxicating, or spirituous liquors; also for punishing persons who gamble; also defining houses of prostitution and punishing persons who run or operate them; also defining and punishing specific acts of keeping a gambling or gaming house; and also against one who unlawfully solicits orders for intoxicating liquors in prohibition territory. Many, if not all- of them, have been amended from time to time, for the purpose of making them more efficient and to enable the courts to punish violators thereof with more certainty and severity. If appellant’s contention is correct, that subdivision “k” of section 1 of said vagrancy act, which is, “Every keeper of a house of gambling or gaming” is a vagrant, making it a misdemeanor and fixing the punishment therefor as such, repeals every other law passed prior thereto, defining and punishing .the keeper of a house of gambling or gaming for any given specific act, a-nd especially that part of said article 388b, making it a felony “if any person shall keep any premises, building, room or place for the purpose of being used as a place to gamble with cards,” and fixing the punishment by confinement in the penitentiary not less than two nor more than four years, then, with equal force, it can he contended, and would perhaps be true, that said vagrancy act also repeals all of our laws on the subject of theft and receiving and concealing stolen property, and all of our laws punishing persons who unlawfully sell any vinous, alcoholic, malt, intoxicating, or spirituous liquors, not only in any prohibition territory, but elsewhere in the state, for subdivision “e” of section 1 of said vagrancy act is: “Persons trading or bartering stolen property, or who unlawfully sell any vinous, alcoholic, malt, intoxicating or spirituous liquors,” are vagrants and shall be punished as such; also all of our laws defining gambling and punishing persons who gamble, for subdivision “f” of said vagrancy act is: “Every common gambler or person who, for the most part, maintains himself as such” is a vagrant, and shall be punished as such; and also our laws defining and .punishing the beeper or persons who run or operate a specific and particular house of prostitution, for subdivision “j” of said vagrancy act is: “Every keeper of a house of prostitution” is a vagrant, and shall be punished as such; and also all of our laws making it unlawful and punishing persons who solicit specific orders for intoxicating liquors, for subdivision “q” of said vagrancy act is: “Any person who unlawfully solicits orders for intoxicating liquors” is a vagrant, and shall be punished as such. It is absolutely unthinkable that the Legislature intended such a wholesale repeal of all these laws on these various subjects in' one fell swoop, by the passage of said vagrancy act. This vagrancy act is not and does not purport to be on any other subject than that of vagrancy. It does not amend or purport to amend any other law. It is not enacted, nor does it purport to be enacted, in lieu and instead of any other law or criminal statute, other than on the subject of vagrancy. Now, let us go to the repealing clause itself, to determine whether or not it has the effect to expressly repeal said article 388b. In addition to what we have said above about the scope, purpose, and object of this statute, the repealing- clause itself is: “Sec. 6. And all laws and parts of laws in conflict herewith are hereby repealed; provided the penalties herein named shall be cumulative, and a conviction for any of the offenses herein named shall not be a bar to any other prosecution under any other criminal statute.” This clearly does not by express mention or terms repeal said gambling act, of which article 388b is a part, nor does it in express terms repeal any particular clause or provision thereof. In construing this section, it is not only proper and necessary that the whole scope, purpose, and object of this vagrancy act shall be considered, but in connection therewith all of our various statutes on the subjects which are claimed to be repealed shall be also looked to and considered. When this is done, we think it is perfectly evident and certain that the Legislature did not intend to repeal any or all of said acts, and especially that clause of article 388b under which the appellant was convicted; bu-t, on the contrary, the very reverse of this is true, for in limiting the first part of this section 6, where it says “all laws and parts of laws in conflict are repealed,” it expressly declares and makes it certain that a conviction for vagrancy is merely cumulative, and “shall not be a bar to any other prosecution under any other criminal statute.” Again the Legislature can enact a rule, or rules, for the construction of its enactment, and do this, either in a separate act or in the same act. Snyder v. Compton, 87 Tex. 379, 28 S. W. 1061; Railroad v. U. S., 208 U. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567; 36 Cyc. 1105. Taking this section 6 in connection with the whole act, it is reasonably certain and clear that after placing therein the first part, stating “all laws and parts of laws in conflict herewith are repealed,” it occurred to the Legislature that some of the provisions of the body of the act might be attempted to be construed to repeal some other criminal statute, other than the previous vagrancy law; hence, to prevent this construction, it said, “provided, the penalties herein named shall be cumulative,” thereby showing it did not intend to repeal any other law. Still, not satisfied that it had made its intention sufficiently clear, and in order to show that it did not, either expressly or 6y implication, intend to repeal any other criminal law, it added, “and a conviction for any of the offenses herein named shall not be a bar to any other prosecution under any other criminal statute," thus making it absolutely certain that no other criminal statute was thereby repealed; for, if “any other criminal statute” was thereby repealed, then no “prosecution or conviction under such other criminal statute” could be had, and the penalty inflicted for vagrancy could not be cumulative. If the Legislature had intended to repeal any or all of these several laws, claimed to be in conflict with the vagrancy act, it could so easily, and doubtless would, have said so by specially mentioning them. We will -further consider whether this vagrancy act repeals, by implication, said article 388b, or any portion thereof. “The law does not favor repeals by implication,, and they will not be adjudged to occur, except when they are inevitable, or plainly the Legislature means them. Such legislative intent is never prima facie presumed. Hence, in restraint and limitation- of repeals by implication, statutes are strictly construed.” Bish. on Stat. -Crimes, § 154. This rule is so elementary, has been so many times announced by this court and our Supreme Court, and substantially by the courts of other states which have passed on the question, we deem is unnecessary to cite other authorities. It is claimed that this vagrancy act in the clause under discussion is in direct conflict with and covers substantially, if not identically, the offense in article 388b, under which appellant was convicted, and by necessary implication it thereby repeals the felony penalty. It is also a well-established rule that, “when two statutes on the same subject can both stand and be effective, no repeal will be implied.” The courts go so far under this rule as to state that, “if it is possible to construe the later statute as cumulative, such construction will be given to it, although its provisions differ from those found in the early statute.” McClain on Crim. Law, par. 92, and note 5; Cope v. Cope, 137 U. S. 682, 11 Sup. Ct. 222, 34 L. Ed. 832; U. S. v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130. The state contends that the offense of vagrancy, defined by said subdivision “k” of section 1 of the vagrancy act, is a separate and distinct offense from that declared by article 388b, under which appellant was convicted. We believe that this is unquestionably true, at least on one point. The offense of vagrancy (subdivision k) is “Every keeper of a house of gambling, or gaming.” The offense for which the appellant was indicted and convicted is that “he did then and there unlawfully keep a room, to wit, room No. 6, in the Waverly Hotel * * * for the purpose of being used as a place to gamble with cards.” The gambling statute, article 388b, makes it a felony for any person to keep “any premises, building, room or place.” Thus making it clear that there is a distinction between a room in that statute and a house under the vagrancy act. This court has expressly held, in Weiss v. State, 16 Tex. App. 432, that “ ‘house’ and ‘room’ are not used as synonymous or convertible terms,” which was in effect approved in Hodges v. State, 44 Tex. Cr. R. 445, 72 S. W. 179. We do not care to limit our opinion on this particular phase of the difference between the two statutes, so that we will take up the question of whether or not the offense of vagrancy, denounced in the vagrancy act, is the same as that defined in article 388b, in its broader and more comprehensive sense. At common law a “vagrant” was originally understood to be an idle person, without visible means of support, who, though able to work for his maintenance, refused to do so The idea conveyed by the word “vagrant” or “vagrancy” also had connected with it, and as a part of it, not only an idle person, but one whose business, pursuit, or occupation, or want of it, was vicious to society, and one who loitered or stayed about immoral places. The English vagrant acts, as in effect defined by old English statutes and referred to in 4 Blacks. Comm. 169, also tended to show that this was the idea of a vagrant. Under- modern legislation of many of the states of the United States, vagrants are defined to be and are punished for pursuing a business or occupation or profession of a vicious, illegal, or demoralizing tendency, and the idea conveyed and intended to be conveyed thereby was and is as to the status, course of conduct, business, pursuit, or occupation of such persons who are denounced as vagrants, and proven by showing many specific acts which make up their general course of conduct, status, business, pursuit, or occupation, in contradistinction to their committing a specific act. The idea further is that such persons are denominated vagrants because their course of conduct, status, business, pursuit, or occupation is habitual in its nature. Such, in effect, is shown to be the case in McClain on Grim. Law, §§ 1018, 1137, 1248, and note 5. As illustrative of this, it is made an offense to keep a place for the illegal sale of intoxicating liquors, and it declared that the building or place where liquor is illegally sold or kept, with the intent to sell, a nuisance, and the offense of keeping such a place different from that of illegally selling or keeping for sale. A further apt illustration of this is punishing a person as a vagrant who is a drunkard, or a common drunkard. In order to prove that a person is a drunkard, or common drunkard, so as to be punished as a vagrant, it would be necessary to show that drunkenness was his course of conduct, or condition of being, or status, in a continuous, or at least habitual, way. It would be necessary to show that he was drunk many or more than one time in a public place, or places, and that was his course of conduct habitually. This would he a different offense, and is a different offense, from each several, specific act of drunkenness. One would not take the place of the other; and, while such person might be punished for being a drunkard or common drunkard, it would not thereby prevent him from being also punished for each specific act of drunkenness which would go to make up his condition of being, course of habitual conduct, or status. The same thing would also apply where a party was prosecuted and convicted as a “keeper of a house of gambling or gaming,” by showing that that was his occupation, business, course of conduct, or pursuit, and would not thereby prevent his being punished for the specific act of keeping a particular gambling house, or room which different specific acts would go to make up his business, occupation, course of conduct, or pursuit. The criminality in such cases — vagrancy, drunkenness, etc. — depends on the habitual character of the improper conduct. McClain on Crim. Law, §§ 1018, 1137, 1248, and note 7. “So it does not constitute double punishment that the same person is punished for individual sales and also for keeping a nuisance.” Oshe v. State, 37 Ohio St. 494. “Cases are numerous in which proof of one-crime is received to establish another; but the introduction of such proof does not bar an indictment for the offense not under trial. * * * In Maine it is held that specific sales may be prosecuted under a statute forbidding them, after the party has been convicted, under another statute, for having been at the time of making them a common seller,, though the practice is familiar that such sales were competent evidence to the charge in the first indictment. And it was adjudged in another case that ‘to punish á person for keeping a drinking house and tippling shop, and also for being a common seller of intoxicating liquors, although the same individual act contribute to make up each offense, is not a violation’ of the law, which forbids a prisoner to be put in jeopardy twice for the same offense. So in Massachusetts the statutory nuisance of keeping a tenement for the - sale of intoxicating liquor is held to be a distinct offense from the statutory one of being a common seller of intoxicating liquor; therefore a conviction of the former is no bar to an indictment for the latter. Neither is an acquittal a bar to a prosecution for keeping the liquor with intent to sell it. And various other like points have been adjudged under statutes regulating or prohibiting the sale of intoxicating drinks.” Bish. on Crim. Law, § 1065; citing State v. Maher, 35 Me. 225; State v. Coombs, 32 Me. 529; Commonwealth v. Keefe, 7 Gray (Mass.) 332; Commonwealth v. Hudson, 14 Gray (Mass.) 11; Commonwealth v. Tubbs, 1 Cush. (Mass.) 2; State v. Inness, 53 Me. 536, 537, opinion by Walton, J.; State v. Layton, 25 Iowa, 193; Commonwealth v. Hardiman, 9 Allen (Mass.) 487; Commonwealth v. Bubser, 14 Gray (Mass.) 83; Commonwealth v. Cutler, 9 Allen (Mass.) 486; Commonwealth v. Lahy, 8 Gray (Mass.) 459; Commonwealth v. McCauley, 105 Blass. 69; Commonwealth v. Sheehan, 105 Mass. 192; Commonwealth v. Hogan, 97 Mass. 122; State v. Andrews, 27 Mo. 267; Sanders v. State, 2 Iowa, 230; State v. Glasgow, Dudl. (S. C.) 40; State v. Rollins, 12 Rich. (S. C.) 297; State v. Conlin, 27 Vt. 318; Commonwealth v. Welch, 97 Blass. 593; Commonwealth v. Farrell, 105 Mass. 189; Commonwealth v. Connors, 116 Blass. 35. “Our jurisprudence is full of instances In which two or a dozen distinct laws cover one question, or cluster of facts, and all stand together; parties having their election on which one to proceed. If the Legislature says that its statute is a revision of the whole subject, and meant to be a repeal of all prior laws relating thereto, no court will hesitate to give it this effect. But if, instead of saying this, it simply enacts what is consistent with the prior law, or re-enacts such law, how can a court know that it means what it does not say — a repeal of laws which may subsist with those which it establishes? Hence, in principle, and equally on the better American authorities and on the English, the just doctrine is that, without exception, a statute in affirmative terms, with no intimation of an intent to repeal prior laws, does not repeal them, unless the new and the old are irreconcilably in conflict.” Bish. on Stat. Crimes, p. 170. Again: “If the new law is not inconsistent with the old, why infer a repeal where none is declared? All enactments are to be interpreted in harmony with the common law; yet this law recognizes a variety of remedies for a single wrong, a variety of offenses committed by a single act, a variety of modes of procedure to gain a common light, a variety of jurisdictions over a given matter, a variety of results from a single cause. Nature recognizes the same. And for a court, disregarding the teachings of both, to declare for a repeal where the Legislature has not is to enact, not interpret, the laws.” Bish. on Stat. Crimes, §§ 160, 162, and authorities cited. The rules of evidence by which vagrancy may be established have always been and are very liberal to the state. Much more so than in, perhaps, any other offense, and it may be established by proof which would be inadmissible to establish specific acts. This tends strongly to show that this vagrancy act was intended by the Legislature to aid and be in furtherance of the existing statutes on the subject of gambling, and not to supplant or displace them. “A subsequent statute in aid of an existing statute will not operate to repeal it.” McClain on Crim. Law, § 93; State v. Taylor, 2 McCord (S. C.) 483; State v. Cole, 2 McCord (S. C.) 1; Lewis’ Sutherland on Stat. Const. § 260, and authorities cited in note 63. This court, in the case of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, has recently upheld our own statute making the pursuit of the occupation of selling liquors in local option territory a felony, in aid and furtherance of pre-existing statutes denouncing and prohibiting the sale of intoxicating liquors therein. And see, also, Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176. “If there is no repugnancy in the several remedies of different statutes with different penalties, they may co-exist.”’ 26 A. & E. Ency. 738, and cases cited in note 2. See Wilson v. State, 55 Tex. Cr. R. 176, 115 S. W. 837. See, also, Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 111, 122 Am. St. Rep. 653, and Ex parte Roper, 134 S. W. 335; Pitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040. But suppose we are wrong in holding that the vagrancy act makes a new and distinct offense from that of the act of 1907 (Penal Code, 388b), so that both can stand, and instead that the vagrancy act makes the “keeper of a house of gambling or gaming” —a misdemeanor punishable by fine not exceeding $200 — precisely the same offense as “if any person shall keep any premises, building, room, or place for the purpose of being used to gamble with cards,” denounced by article 388b, making it a felony, and fixing the punishment at confinement in the penitentiary not less than two nor more than four years, then we recognize that both cannot stand, and that one or the other must fall. The question then is, Which shall stand, and which shall fall? And what was the legislative intent? We have shown above that the intent of the Legislature was not to repeal the gambling law, nor any part of it. Hence the following rule: “The different sections or provisions of the same statute or Code should be so construed as to harmonize and give effect to each, but, if there is an irreconcilable conflict, the later in position prevails.” Lewis’ Suth. on Stat. Const. (2d Ed.) § 268, p. 514; citing Ex parte Thomas, 113 Ala. 1, 21 South. 369; Hand v. Staple-ton, 135 Ala. 156, 33 South. 689; Van Horn v. State, 46 Neb. 62, 64 N. W. 365; Omaha Real Est. & T. Co. v. Kragscow, 47 Neb. 502, 66 N. W. 658. And: “If a conflict exists between two statutes or provisions, the earlier in enactment or position is repealed by the later. ‘Leges posteriores priores con-trarias abrogant.’ Where there is an irreconcilable conflict between different sections or parts of the same statute, the last words stand, and those which are in conflict with them, so far as there is a conflict, are repealed; that is, the part of a statute later in position in the same act or section is deemed later in time, and prevails over repugnant parts occurring before, though enacted and to take effect at the same time. This rule is applicable where no reasonable construction will harmonize the parts. It is presumed that each part of a statute is intended, to coact with every other part; that no part isi intended to antagonize the general purpose of the enactment. To ascertain the legislative intent every part of an act, and other acts in pari materia, are to be considered. One part of an act may restrict another part' — an early section a later, and vice versa; but, if one part is so out of line with other parts and the general purpose of the act that it can only operate by wholly neutralizing some other part, then the later provision is supreme, as expressing the latest will of the lawmaker. Hence it is a rule that where the proviso of an act is directly repugnant to the purview, the' latter is repealed by it.” Lewis’ Sutherland’s Stat. Const. § 280. These rules apply, and subdivision “k” of the vagrancy act must fall. Again: “A repealing clause in a statute may be valid, although every other clause is unconstitutional, if such is plainly the legislative intent. But where the repeal is intended to clear the way for the operation of the act containing the repealing clause, thereby showing an intention to displace the old law with the new, if the latter is unconstitutional, the repealing clause would be dependent and inoperative. ‘Where the evident purpose of the repeal is to displace the old law and substitute the new in its stead, the repealing section or clause, being dependent upon that purpose of substitution, necessarily falls when falls the main purpose of the act.’ An unconstitutional statute can have no effect to repeal former laws or parts of laws by implication, since, being void, it is not inconsistent with such former laws.” Section 245, Lewis’ Sutherland’s Stat. Const.; citing Railway v. Galveston, 96 Tex. 520, 74 S. W. 537; Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501, 17 South. 721; People v. Fleming, 7 Colo. 230, 3 Pac. 70; Miller v. Edwards, 8 Colo. 528, 9 Pac. 632; Fesler v. Brayton, 145 Ind. 71, 44 N. E. 37, 32 L. R. A. 578; Stephens v. Ballou, 27 Kan. 594; Wells v. Hyattsville, 77 Md. 125, 26 Atl. 357, 20 L. R. A. 89; State v. Benzinger, 83 Md. 481, 35 Atl. 173; Campau v. Detroit, 14 Mich, 276; Westport v. McGee, 128 Mo. 152, 30 S. W. 481; Harbeck v. Mayor, 10 Bos. (N. Y.) 366; People v. Dooley, 69 App. Div. 512, 75 N. Y. Supp. 350; State v. Thrall, 59 Ohio St. 368, 52 N. E, 785; State v. Buckley, 60 Ohio St. 273, 54 N. E. 272; State v. Jones, 66 Ohio St. 453, 64 N. E. 424, 90 Am. St. Rep. 592; State v. Beacom, 66 Ohio St. 491, 64 N. E. 427, 90 Am. St. Rep. 599; State v. Buckley, 17 Ohio Cir. Ct. R. 86; Matter of Roberg’s Assignment, 18 Ohio Cir. Ct. R. 367; United States Mfg. & T. Co., 19 Ohio Cir. Ct. R. 358; Collins v. Bingham Bros., 22 Ohio Cir. Ct. R. 533; Porter v. Kingfisher County Com’rs, 6 Okl. 550, 51 Pac. 741; Barringer v. Florence, 41 S. C. 501, 19 S. E. 745; Galveston & W. Ry. Co. v. Galveston, 96 Tex. 520, 74 S. W. 537; Ex parte Davis (C. C.) 21 Fed. 396. In State v. Blend, 121 Ind. 514, 23 N. E. 511, 16 Am. St. Rep. 411, the court overruled the prior case of Meshmeier v. State, 11 Ind. 482, which holds a contrary doctrine, and declares that the latter case is inconsistent with all the other cases on the subject; citing Tims v. State, 26 Ala. 165; Sullivan v. Adams, 3 Gray (Mass.) 476; Childs v. Shower, 18 Iowa, 261; Shepards v. Milwaukee, etc., R. R. Co., 6 Wis. 539, 70 Am. Dec. 479; State v. Judge, 11 Wis. 50; Devoy v. Mayor, 36 N. Y. 449; State v. Hallock, 14 Nev. 202, 33 Am. Rep. 559; McAllister v. Hamlin, 83 Cal. 361, 23 Pac. 357; Orange County v. Harris, 97 Cal. 600, 32 Pac. 594; Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 624; People v. Butler St. Foundry & I. Co., 201 Ill. 236, 66 N. E. 349; Commonwealth v. Fowler, 18 Phila. (Pa.) 513. Also: “A law is entire where each part has a general influence over the rest, and all are intended to operate together for one purpose. In-such case the invalidity of that purpose will affect the whole act. Nevertheless, if only one incidental provision is invalid, that may not render the whole act void. It is not entire in that sense. Where a repeal of prior laws is inserted in an act, in order to the unobstructed operation of such act, and it is held unconstitutional, the incidental provision for the repeal of prior laws will fall with it. An act was passed to dissolve municipal corporations and provided the manner in which they might reincorporate. The latter was the object of the enactment, and that being held unconstitutional the former was also invalid. In such cases the object of the Legislature is frustrated; when the void part is eliminated, there is not a complete act remaining expressive of the intent of the Legislature and sufficient to carry it into effect.” Lewis’ Sutherland’s Stat. Const. § 302, vol. 1; citing Quinlon v. Rogers, 12 Mich. 168; State v. Commissioners, 38 N. J. Law, 320; Childs v. Shower, 18 Iowa, 261; Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501, 17 South. 721; Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 624; Fesler v. Brayton, 145 Ind. 71, 44 N. E. 37, 32 L. R. A. 578; Barringer v. Florence, 41 S. C. 501, 19 S. E. 745; State v. Stark, 18 Fla. 255; Ex parte Towles, 48 Tex. 413. So that we hold that if subdivision “k” of the vagrancy law provides the same offense as article 388b, and attempts to make two punishments for the same offense, it not being the intention of the Legislature to repeal the gambling law, subdivision “k” is unconstitutional and void, because it attempts to put a person twice in jeopardy for the same offense. Const. art. 1, § 14. We will not elaborate this doctrine, but content ourselves with merely stating these last propositions, as this opinion is already too lengthy. Restated: What we hold on this point is: First. That the vagrancy act does not, either expressly or by implication, repeal the gambling act, or any part of it. Second. That the “keeper of a house of gambling or gaming” under the vagrancy act is a separate and distinct offense from that of “if any person shall keep any premises, building, room or place for the purpose of being used to gamble with cards,” denounced by the gambling act, for which appellant was convicted; but, if we are mistaken in this second holding, then: Third. That subdivision “k” of the vagrancy act is unconstitutional and void, because it fixes a different penalty for the same act, and expressly undertakes to keep both acts in force. This brings us to this immediate trial, and the questions arising therein, which we will now decide. 5. The court did not err in overruling appellant’s motion to quash that count of the indictment under which appellant was convicted, because it strictly followed the law. 6. The court did not err in overruling appellant’s motion for continuance. The motion shows that it was on account of the absence of George Weathered. A subpoena was issued on March 11th, requiring the witness to appear at court on March 24, 1909; service was had thereunder on the witness March 15, 1909; about March 17th the case was set for trial on March 29, 1909. The motion says that the witness was duly notified that the case was set for March 29, 1909, and that he never disobeyed a subpoena. It is not shown when, where, nor by whom he was notified that the case was set for March 29th. Presumably this was done by the appellant or his authority. It is not shown that the witness agreed to be present on the 29th. It is not shown that he was present on the 24th, as was his duty in obedience to Idle subpoena. The appellant, thereupon, assuming to take the place of the court in having the witness to attend, must abide by his action if the witness did not attend later. No other process was issued for him until after the trial began on March 29th, so that no sufficient diligence was shown to procure the attendance of the witness. On the count under which appellant was convicted, the motion shows, it was expected to be proved by the witness that room No. 6 was furnished, fitted up, and run as a regular sleeping apartment in the hotel during the time the appellant was charged with the commission of the offense; that it was promiscuously and constantly rented out and assigned to guests as a bedroom, and that it was not at any time set apart or furnished to be used for any character of gambling; that it was not kept for the purpose of a place to be used to gamble with cards, or to which people would resort for the purpose of gambling with cards. It is seen by this that a part of what was expected to be proved by the witness was a conclusion, and not a fact. It is shown by appellant in his brief that the room was used and rented out occasionally as a bedroom for guests. The overwhelming testimony of the witnesses shows that the room was kept by the appellant for^ the purpose of being used as a place to gamble with cards, even though it was used as a guests’ room, as other rooms were so used in the hotel. If the witness had sworn to the conclusion, as stated in the motion, that the room was not so kept, his testimony was untrue in the light of the record, and it was not error to refuse to continue the case on that account. Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477. Any place which is kepi for the purpose of gaming, even though it may be put to other uses, and even though its principal use is for some lawful object, is a place kept for gaming. 20 Cyc. 893. 7. Appellant requested many charges. Most of them pertained to other counts in the indictment. Such of them as were applicable were either given by the court, or were embraced in the main charge, of the court, so that there was no error, either in the court’s charge, together with the special charges requested by appellant and given, or refusal to give the special charges which were requested by appellant. 8. Appellant has several bills of exception to the testimony of some of the witnesses, claiming that the first state’s witness, McNamara, by his testimony having fixed the time of the commission of the offense in the summer of 1908, that the state should be confined to that particular time at which the said room was used for gaming, and that evidence of no other time could be introduced, and sought to require the state to elect which act it would rely upon for conviction, and to exclude proof of any and all others. The court did not err in either not requiring an election or confining the testimony to any one given transaction. Under the many counts in the indictment, the state had the right to introduce testimony under each of them. The offense charged and under which ■appellant was convicted was to be shown by proof of many 'and continuous acts of gambling in the particular room at any time prior to the return of the indictment, within the time of limitation, which tended to show that the room was kept as a place to gamble with cards. The offense charged and for which appellant was convicted was a continuous one, and it was entirely appropriate for the state to prove more than one use of the room for the gambling, and in fact the many times of the use thereof for that purpose. The rule, which is well established in this state, that other distinct crimes cannot be proven when a party is indicted for one special act, which act of itself constitutes a crime, does not apply. 9. It is claimed that the testimony is' insufficient to show that the appellant was the keeper of said room, to be used for gambling purposes. We have carefully gone over several times the testimony on this subject. It is amply sufficient to show that the appellant was the keeper of said room, and that it was commonly and frequently resorted to and used for gaming purposes. Many persons, in various walks of life, resorted there for the purpose of gambling, and gambled with cards many times. Frequently there were a large number of persons in the room gambling. The appellant was shown, with reasonable certainty and by full proof, to have been present and participated in the games. Different indicia of gaming was found there and kept there. Lunches were .served to persons who were engaged in the gambling. Liquor was also served in the same way. The testimony is amply sufficient to show that all this was done by or with the knowledge and consent of the appellant. At the beginning of each game, each person engaged therein paid 50 cents, and the evidence is amply sufficient to show that he himself received and appropriated this 50 cents. The room was shown to be resorted to practically continuously, and at all times of the day and night, and was understood generally by persons shown to have indulged in gambling to have been known as a place where they could and would gamble with cards. It is unnecessary to recite in detail any or all of the testimony of the several witnesses. 10. Complaint is made of the closing argument of the county attorney, wherein he urged the jury to abide by the law and uphold the law, and convict the appellant, and wherein he is shown to have said: “Far better would it be for you to return a verdict of guilty, if the law and facts so demand, and that when the verdict had been returned you 12 men should crawl out of this court on your hands and knees, crawl out of the city, down by Lorena, Temple, and Taylor, and crawl up the granite steps of the State Capitol, and present in person an application for a pardon to the Governor of the state, than that you should trample in the dust the laws of Texas. We live under a beautiful government; different departments of this government charged with different duties. You, as jurors, become a part of the government charged with the enforcement of the law. There is a governor and a board of pardons, who have their duties to perform. Let us do our duty nearest our door, and trust that the other departments of the government will do-their duty as given them by the laws of the state.” This speech of the county attorney shows to have been in response to a speech of one of the appellant’s attorneys. The record shows that the court at once orally instructed the jury to disregard the argument of the county attorney about a pardon for the defendant in this case. The jurors all testified on a hearing of the motion for a new trial that they did disregard the county attorney’s remarks on the subject of pardon, and that it had no influence whatever with them in arriving at a verdict, and that it was not even referred to by the jury, or any of them, until after they had arrived at a verdict, and it appears it was written out; then a mere suggestion was made by one of the jurors on the subject, which was at once dismissed by the others, and that the remarks by the county attorney had no influence whatever upon them in finding a verdict. The appellant did not request a written charge to the jury on the subject. There was no error committed in this particular. 11. On the motion for new trial the appellant claimed that the jurors had been guilty of misconduct, in that several of them talked over the phone to various persons before a verdict was found. The testimony is given by the officer who had them in charge, and each of the .jurors. It is to the effect that several of the jurors, while they were in a body and in the presence of one another and in the presence and charge of the officer, called up over the phone their wives or some friend who lived close to where they lived, informing them of the fact that they were on the jury and would be kept together and could not come home that night. That some of them called up the trial judge to know if they could go to a picture show that night. 1-Ie referred them to the appellant’s attorneys ; that they thereupon communicated with one of the attorneys and in effect got the consent, over the phone, from this attorney to attend the picture show in a body, etc. The testimony on this point clearly shows that nothing was said by any of the jurors to any person over the phone about the case, or anything in connection therewith. This testimony also clearly shows that no injury whatever resulted to the appellant by reason of any of these calls or conversations over the phone, or by their attendance upon the picture show with the consent of appellant’s attorneys, so that the court did not err in refusing to grant a new trial on that ground. 12. It is also claimed by the appellant that the verdict is uncertain, because it does not show under which count the appellant was convicted. We have examined the record fully as to this, and have reached the conclusion that the verdict is not uncertain on that account or any other, and that the court did not err in overruling the motion for new trial because thereof. There being no reversible error in the case, the judgment of the lower court is in all things affirmed. DAVIDSON, P. J., dissents and will make a few observations, expressing reasons.
On Motion for Rehearing. PRENDERGAST, J. The appellant through his attorneys, has filed a motion for rehearing, earnestly contending that this court in the original opinion erred in several particulars. Knowing the ability, learning, and sincerity of appellant’s attorneys in this case, notwithstanding the great length of the opinion of the court before, we deem it appropriate to go some further into the various matters presented in this motion for rehearing. In considering this motion, we have again thoroughly gone over the record, and all the questions raised. We will probably not take up and discuss each of them, as it is unnecessary; yet we have fully considered each. 1. Complaint is made that this court erred in the original opinion in holding that the act of the 30th Legislature, p. 107, is not unconstitutional on the various grounds originally attacked. But particular emphasis is laid upon that provision of the Constitution contained in article 3, § 38, requiring the presiding officers of each house to sign bills when passed, after their titles have been publicly read before signing, “and the fact of signing shall be entered on the journals,” contending and claiming that the said journals did not show that the said bill had been so signed, and claiming that the said bill as signed is of an entirely different caption from the one as promulgated and published as the said act of the Legislature. Appellant’s bill making this contention claims to show, and we believe substantially shows, all that the journals of the two houses of the Legislature contain pertaining to said bill. This bill of exception, and the journal of the House itself, shows that “House Bill No. 84” was introduced in the Legislature by Mr. Dean, on January 14, 1907, the sixth day of the regular session of the 30th Legislature. This journal and bill of exception show that this bill is “House Bill No. 84”— “A bill to be entitled ‘An act to amend article 388 of the Penal Code of the state of Texas, so as to make it unlawful to bet at a game played with, dice at any place.’ ” It is not shown by this bill of exception, nor by the House Journal, neither is it necessary under the Constitution, what the full contents of that bill as originally introduced were, nor that the entry in the journal made by the journal clerk- was the whole of the title of the said bill No. 84 as introduced by. Mr. Dean.- The bill of exception .and the journals of the House and Senate show af-. firmatively and clearly that this identical bill was properly referred to one of the House committees; that it was afterwards reported by that committee to the House, .read a second time, and amended in several particulars, read a third time, and was finally passed by the House, properly transmitted to and received by the Senate, properly referred by the President of the Senate (the Lieutenant Governor) to one of its committees, reported by the committee to the Senate with certain amendments, amended in some particulars, and finally adopted by the Senate, after being severally read three times, properly transmitted back to the House, with a report of what the Senate had done thereto, then printed in the House Journals in full as passed by the Senate; that the House refused to concur in the Senate amendments on the motion of Mr. Dean, the author of the bill, and requested a free conference committee to adjust the differences between the two houses. The journals of the House and Senate both show, as stated by said bill of exceptions, that this free conference committee was appointed by each house. Then appellant’s bill of exception itself and the journals of both the Senate an¡3. House show: “Pages 1100 to 1103 of the House Journal, and pages 748 to 752 of the Senate Journal, both of which were offered in evidence, show the free conference report to both the House and the Senate, and the same is in all things identical with the bill as finally passed and promulgated as' law in the Acts of the 30th Legislature and under which the indictment in this case was drawn. “Page 572 of the Senate Journal and page 1103 of the. House Journal each show the adoption by the respective bodies of the free conference committee report, both of which were offered in evidence. “The following was offered in evidence from pages 794, 795, of the Senate Journal: Bills and Resolutions Signed. The chair (Lieutenant Governor Davidson) gave notice of signing, and did sign in the presence of the Senate after their captions had been read, * * * House Bill No. 84, ‘An act to amend article 388 of the Penal Code of the state of Texas, so as to make it unlawful to bet at a game played with dice at any place.’ ” (In this journal entry other bills were also identified and shown to have been signed.) “Pages 1154, 1155, of the said House Journal: Bills Signed by Speaker. The Speaker signed to-day, in the presence of the House, after giving due notice thereof, and their captions had been read severally, the following bills: * * * ‘House Bill No. 84. An act to amend article 388 of the Penal Code of the state of Texas, so as to make it unlawful to bet or wager at any gaming table or bank or pigeon hole, or jenny lind table, or nine or ten pin alley, such as are in the six preceding articles, or to bet or wager any money or anything of value at any of the following games, viz.: Poker, dice, jackpot, high dice, low dice, dominoes, euchre with dominoes, etc.; providing for the search and the seizure of any gambling device, equipment or paraphernalia and its destruction, and generally to suppress gambling, repealing all laws in conflict herewith, and declaring an emergency.’ ” (In this journal entry other bills were also identified and shown to have been signed.) . “Page 1158 of the House Journal, which was introduced in evidence, shows that House Bill No. 84 as finally amended by the free conference committee was duly and properly enrolled.” The journals of both houses show that there was no other “House Bill No. 84” than the said bill introduced by Mr. Dean, and traced by this bill of exception and the journals of both houses through both houses from the first introduction thereof until the final passage, signing, and enrollment, and approval by the Governor. The journals of each house do not in every instance give the full title of the said bill. It is sometimes identified simply and solely as “House Bill No. 84”; sometimes in addition a part of the title or caption thereto is given; at other times more of the caption or title is given; and sometimes the full title or caption is given as it was finally enacted into a law. In every instance it is designated “House Bill No. 84,” whether only part or all of the caption is given. To take the record of the journal in each house from first to last, there is not a shadow of doubt as to the identity of “House Bill No. 84,” and that the bill, as it finally passed and became the enactment of the Legislature under which this prosecution was had, is that identical bill, and no other, as identified by these various methods and statements thereof. Neither is there a breath of suspicion that said “House Bill No. 84” is any other bill than the one which finally became the enactment of said Legislature. It occurs to us that with this tracing of this “House Bill No. 84,” and unquestionably identifying this particular bill as the final act of the Legislature, and no other, that when the Senate Journal, as shown thereby, and the said bill of exception of the appellant, states pointedly, clearly, and distinctly as follows: “Bills and Resolutions Signed. The chair (Lieutenant Governor Davidson) gave notice of signing and did sign in the presence of the Senate after their caption