File contributed by Lisa Lach and proofed/formated by Dena Stripling

Unless the supreme court is fully satisfied from the evidence that the trial court 
erred in the exercise of its discretion in admitting parol proof of the existence 
of a lost or destroyed record, it will not interfere.


Where a witness testified that he had seen a certain order on the records of the 
probate court, and that the records were carelessly kept, and he believed the 
record of said order had been destroyed, and the clerk testified that the records 
were carelessly kept, and some of them mutilated, but that they were not mutilated 
for the time when said order should have been recorded, the evidence of the 
destruction of the records was not made out, and oral evidence that such order 
had been made of record was not admissible.


The discretion of a court in allowing parol proof of the existence of a lost or 
destroyed record must rest upon a reasonable conclusion drawn from all the 
evidence on the matter.

It is a matter within the discretion of the court to determine whether a proper 
basis has been laid by proving the loss or destruction of a record to let in parol
 proof that the record once existed.

*1 Appeal from Bastrop.
Hamilton & Walton, for appellants. It is believed that the second assignment is 
well taken.
That the appellants had the right to introduce testimony proving the former existence 
and contents of the records or papers, and their loss or destruction, of the County 
Court of Bastrop county, see 3 Phil. Ev., 1067, note 723, with authorities cited; 1 
Greenl. Ev., 581, with authorities cited.
A sufficient basis was laid by appellants for the introduction of the secondary evidence 
offered. The Court will not hold appellants to the strictest proof in laying proper 
foundation for the introduction of such evidence, because Courts show great liberality 
where no suspicion hangs over the party seeking to establish the contents of lost papers 
or records. It is not intimated that appellants are chargeable with the loss of the 
records and papers.
We have in the testimony positive evidence of the former existence of the records and 
papers upon which the validity of appellants' title depends. We have the further 
evidence that those records and papers do not exist or cannot be found in their proper 
place of deposit. This is, then, certainly sufficient to admit the secondary evidence
 to the jury sought to be introduced as establishing the contents of the records and 
papers, &c.
The Probate Court is not strictly a Court of record. It is, therefore, contended that 
any paper on file in such Court would be as good evidence of the action of the Court as 
a record made of these papers would be.
It is contended that all the papers as they are on file are, in fact, the record of the
 Court. This position has been sustained by one or more of the District Judges. We know
 not with what favor it will meet in this Court. If, then, the Court papers are in fact
 the record, proof of the loss of such papers will admit parol evidence as to their 
contents, although they had never been recorded in a bound book, &c. This seems to be 
a rule which may well be adopted where so great a necessity exists for it as in our 
State, in view of the careless and negligent manner in which our records and Court 
papers were kept years since.
Should a different rule than this obtain it would be the source of interminable 
litigation. But we are not forced to rely upon this rule, because the testimony of 
James Smith is positive and emphatic as to the former existence of such orders and
 papers. William Dunbar's testimony is equally positive as to the non-existence of
 such orders and papers in their proper deposit.
There is no positive rule as to the amount and character of evidence to be introduced 
as a sufficient basis for the introduction of parol testimony proving the contents of 
lost papers or records, but each case must stand upon the circumstances surrounding it, 
&c.
Poage and Marshall, for appellees.


LIPSCOMB, J.
This suit was brought by the heirs of Garretson to recover from the defendants one-third 
of a league of land. The defendants set up in defense a purchase from one Smith, the
 administrator of Garretson. The first evidence offered by them is a covenant as follows
, i. e.:
*2 "Know all men by these presents that I, James Smith, administrator of Jas. Garretson,
 deceased, by virtue of an order of the Probate Court in and for the county aforesaid, 
(Bastrop,) did expose the within claim at public sale in the town of Bastrop, on the 28th
 May, 1838, to the highest bidder, on a credit of six months, and Thomas H. Mays being the 
highest and best bidder, at the sum of four hundred and fifty dollars, and it was struck 
down to him at that sum, for which I bind myself, my assigns, and the heirs and assigns 
of Thomas Garretson, so far as the ability in me exists as administrator, to make a good
 and sufficient title to the said land, if the said bidder should not receive the patent
 in his own name, so soon as title is obtained for the same. Given under my hand in the 
town of Bastrop this 28th May, 1838.
JAMES SMITH. [L. S.]"
The defendant offered to prove by oral testimony that there had been an order of sale, 
that the return of the sale had been made to the Court, and that the same had been 
approved by the said Court; which evidence was rejected by the Court, and there was a
 verdict and judgment for the plaintiffs; a motion for a new trial made and overruled, 
from which the defendants appealed.
The first assignment of error, that the Court compelled the defendants to read the whole 
transcript in evidence of all the matters and things of record in relation to the 
succession of the said Thomas Garretson, when they only offered to read two pages of 
the same, is not supported by the record. It appears that the whole transcript was read 
by the defendants without any ruling of the Court that it should be done, or offer on 
their part to read only a part of it.
The second one is, that the Court erred in rejecting the evidence offered to prove that
 the order for sale had been made by the Probate Court, the return of the sale by the
 administrator, and the approval and confirmation thereof by the Probate Court. It
 appears from the record that Smith, the administrator, was called by the defendants.
 He testified that he had sold the certificate under an order of the Probate Court, 
and returned to the Court an account thereof, which was approved and confirmed by the
 Court; that he had looked for the order of the Court for the sale and for the 
confirmation, and could not find them on the records, though he had seen them there; 
that the records have been carelessly kept and much mutilated, and he believes that 
the record has been destroyed. Dunbar, the keeper of the records and Clerk of the 
Court, swears that the order and confirmation cannot be found of record, and confirms 
the evidence of Smith, that they had been carelessly kept and some of them mutilated;
 but he swears "that he had examined the minute-book of the Court for 1837 and 1838; 
that he could find no mutilation in said minutebook between the period of granting 
letters of administration upon the estate of Thomas Garretson and the date of transfer
 by James Smith, administrator of said Garretson, indorsed on the certificate aforesaid,
 and that there was a continuation in said book from page to page connecting the orders." 
The minute- book was inspected by the Court, and it was ruled that the evidence of the 
destruction of the records was not made out, and the Court rejected the oral evidence 
that such orders had been of record.
*3 It is always a question addressed to the discretion of the Court to determine whether
 the basis has been laid by proving the loss or destruction of a record, to let in proof
 that such record once did exist. This discretion is not an arbitrary, capricious 
discretion, but must be a reasonable conclusion from the evidence. But unless we were 
fully satisfied from the evidence that the Court below erred in the exercise of its 
discretion, we would not be authorized to reverse its decision. Parol evidence to 
supply record testimony should be received with great caution. In such cases the 
temptation to fraud and perjury would be very great, and the difficulty, if not the 
impossibility, of a conviction for perjury, and of rebutting such evidence, would be
 an encouragement to an unscrupulous witness. It is a rule of law that affirmative 
evidence is entitled to more weight than negative. So one witness might swear to the 
contents of a record, and two swear they had never seen such record; the affirmative 
witness would prevail against the two negative witnesses, and it would be almost an
 impossibility to convict that witness of perjury, if it had been a perjury, 
fabricated and perpetrated for the particular occasion. Hence the necessity that 
the most satisfactory evidence of the destruction of the record should be required
 before parol evidence can be admitted to supply the contents of the record. The 
evidence of such mutilation and loss was rebutted by the evidence of Dunbar, the Clerk 
of the Court, and the inspection of the book itself, that should have contained such 
record, if it had existed. We believe that the Judge did not err in his decision 
rejecting the evidence offered.
The record presents nothing else for our consideration, and the judgment is affirmed.
Judgment affirmed.
Tex. 1854.
MAYS AND ANOTHER v. MOORE AND OTHERS.
13 Tex. 85, 1854 WL 4468 (Tex.)
END OF DOCUMENT


=====


Unless the supreme court is fully satisfied from the evidence that the trial court 
erred in the exercise of its discretion in admitting parol proof of the existence of
a lost or destroyed record, it will not interfere.


Where a witness testified that he had seen a certain order on the records of the probate 
court, and that the records were carelessly kept, and he believed the record of said 
order had been destroyed, and the clerk testified that the records were carelessly kept,
 and some of them mutilated, but that they were not mutilated for the time when said 
order should have been recorded, the evidence of the destruction of the records was not
 made out, and oral evidence that such order had been made of record was not admissible.


The discretion of a court in allowing parol proof of the existence of a lost or destroyed 
record must rest upon a reasonable conclusion drawn from all the evidence on the matter.


It is a matter within the discretion of the court to determine whether a proper basis has
 been laid by proving the loss or destruction of a record to let in parol proof that the 
record once existed.

*1 Appeal from Bastrop.
Hamilton & Walton, for appellants. It is believed that the second assignment is well taken.

That the appellants had the right to introduce testimony proving the former existence and 
contents of the records or papers, and their loss or destruction, of the County Court of 
Bastrop county, see 3 Phil. Ev., 1067, note 723, with authorities cited; 1 Greenl. Ev., 
581, with authorities cited.
A sufficient basis was laid by appellants for the introduction of the secondary evidence 
offered. The Court will not hold appellants to the strictest proof in laying proper 
foundation for the introduction of such evidence, because Courts show great liberality 
where no suspicion hangs over the party seeking to establish the contents of lost papers
 or records. It is not intimated that appellants are chargeable with the loss of the 
records and papers.
We have in the testimony positive evidence of the former existence of the records and 
papers upon which the validity of appellants' title depends. We have the further evidence 
that those records and papers do not exist or cannot be found in their proper place of 
deposit. This is, then, certainly sufficient to admit the secondary evidence to the jury 
sought to be introduced as establishing the contents of the records and papers, &c.
The Probate Court is not strictly a Court of record. It is, therefore, contended that
 any paper on file in such Court would be as good evidence of the action of the Court 
as a record made of these papers would be.
It is contended that all the papers as they are on file are, in fact, the record of th
e Court. This position has been sustained by one or more of the District Judges. We know
 not with what favor it will meet in this Court. If, then, the Court papers are in fact 
the record, proof of the loss of such papers will admit parol evidence as to their 
contents, although they had never been recorded in a bound book, &c. This seems to be 
a rule which may well be adopted where so great a necessity exists for it as in our
 State, in view of the careless and negligent manner in which our records and Court 
papers were kept years since.
Should a different rule than this obtain it would be the source of interminable litigation.
 But we are not forced to rely upon this rule, because the testimony of James Smith is 
positive and emphatic as to the former existence of such orders and papers. William Dunbar's 
testimony is equally positive as to the non-existence of such orders and papers in their
 proper deposit.
There is no positive rule as to the amount and character of evidence to be introduced as a 
sufficient basis for the introduction of parol testimony proving the contents of lost 
papers or records, but each case must stand upon the circumstances surrounding it, 
&c.
Poage and Marshall, for appellees.


LIPSCOMB, J.
This suit was brought by the heirs of Garretson to recover from the defendants one-third 
of a league of land. The defendants set up in defense a purchase from one Smith, the 
administrator of Garretson. The first evidence offered by them is a covenant as follows,
 i. e.:
*2 "Know all men by these presents that I, James Smith, administrator of Jas. Garretson,
 deceased, by virtue of an order of the Probate Court in and for the county aforesaid,
 (Bastrop,) did expose the within claim at public sale in the town of Bastrop, on the 
28th May, 1838, to the highest bidder, on a credit of six months, and Thomas H. Mays 
being the highest and best bidder, at the sum of four hundred and fifty dollars, and 
it was struck down to him at that sum, for which I bind myself, my assigns, and the 
heirs and assigns of Thomas Garretson, so far as the ability in me exists as administrator,
 to make a good and sufficient title to the said land, if the said bidder should not
 receive the patent in his own name, so soon as title is obtained for the same. Given 
under my hand in the town of Bastrop this 28th May, 1838.
JAMES SMITH. [L. S.]"
The defendant offered to prove by oral testimony that there had been an order of sale, 
that the return of the sale had been made to the Court, and that the same had been 
approved by the said Court; which evidence was rejected by the Court, and there was
 a verdict and judgment for the plaintiffs; a motion for a new trial made and overruled,
 from which the defendants appealed.
The first assignment of error, that the Court compelled the defendants to read the whole
 transcript in evidence of all the matters and things of record in relation to the 
succession of the said Thomas Garretson, when they only offered to read two pages of
 the same, is not supported by the record. It appears that the whole transcript was 
read by the defendants without any ruling of the Court that it should be done, or 
offer on their part to read only a part of it.
The second one is, that the Court erred in rejecting the evidence offered to prove
 that the order for sale had been made by the Probate Court, the return of the sale 
by the administrator, and the approval and confirmation thereof by the Probate 
Court. It appears from the record that Smith, the administrator, was called by the
 defendants. He testified that he had sold the certificate under an order of the 
Probate Court, and returned to the Court an account thereof, which was approved and
 confirmed by the Court; that he had looked for the order of the Court for the sale
 and for the confirmation, and could not find them on the records, though he had seen
 them there; that the records have been carelessly kept and much mutilated, and he 
believes that the record has been destroyed. Dunbar, the keeper of the records and 
Clerk of the Court, swears that the order and confirmation cannot be found of record, 
and confirms the evidence of Smith, that they had been carelessly kept and some of
 them mutilated; but he swears "that he had examined the minute-book of the Court for 
1837 and 1838; that he could find no mutilation in said minutebook between the period 
of granting letters of administration upon the estate of Thomas Garretson and the date
 of transfer by James Smith, administrator of said Garretson, indorsed on the certificate 
aforesaid, and that there was a continuation in said book from page to page connecting 
the orders." The minute- book was inspected by the Court, and it was ruled that the 
evidence of the destruction of the records was not made out, and the Court rejected 
the oral evidence that such orders had been of record.
*3 It is always a question addressed to the discretion of the Court to determine whether 
the basis has been laid by proving the loss or destruction of a record, to let in proof 
that such record once did exist. This discretion is not an arbitrary, capricious 
discretion, but must be a reasonable conclusion from the evidence. But unless we were
 fully satisfied from the evidence that the Court below erred in the exercise of its 
discretion, we would not be authorized to reverse its decision. Parol evidence to 
supply record testimony should be received with great caution. In such cases the 
temptation to fraud and perjury would be very great, and the difficulty, if not the 
impossibility, of a conviction for perjury, and of rebutting such evidence, would be 
an encouragement to an unscrupulous witness. It is a rule of law that affirmative 
evidence is entitled to more weight than negative. So one witness might swear to the 
contents of a record, and two swear they had never seen such record; the affirmative
 witness would prevail against the two negative witnesses, and it would be almost an
 impossibility to convict that witness of perjury, if it had been a perjury, 
fabricated and perpetrated for the particular occasion. Hence the necessity that the
 most satisfactory evidence of the destruction of the record should be required before
 parol evidence can be admitted to supply the contents of the record. The evidence of 
such mutilation and loss was rebutted by the evidence of Dunbar, the Clerk of the Court,
 and the inspection of the book itself, that should have contained such record, if it had 
existed. We believe that the Judge did not err in his decision rejecting the evidence
 offered.
The record presents nothing else for our consideration, and the judgment is affirmed.
Judgment affirmed.
Tex. 1854.
MAYS AND ANOTHER v. MOORE AND OTHERS.
13 Tex. 85, 1854 WL 4468 (Tex.)
END OF DOCUMENT



====

Supreme Court of Texas.
THE STATE
v.
EDWARD TONEY.
1854.


An indictment against "Edward Toney Joseph Scott," laborers, intended for Edward Toney 
and Joseph Scott, is bad.

*1 Appeal from Bastrop. This was an indictment against Edward Toney Joseph Scott, late
 of Bastrop county, laborers, for permitting gambling in a house kept for the retailing
 of spirituous liquors.
Edward Toney pleaded in abatement that his real name is Edward Toney, and that he was 
never known or called Edward Toney Joseph Scott. The plea was sustained, the indictment
 quashed, and the State appealed.
Attorney General, for appellant. The indictment, as the body of it shows, was jointly 
against Edward Toney and Joseph Scott, described in the indictment as """Edward Toney 
Joseph Scott, late of Bastrop county, laborers."
It would be difficult, if not altogether impracticable, to adduce any standard 
authority for holding that the trifling omission of the conjunction "and" between
 two several names of different defendants jointly indicted, while clearly 
distinguished by after-words in the same instrument, (as here by the word "laborers"
 in the plural number,) amounts to misnomer as a ground for abatement.


HEMPHILL, CH. J.
We are of opinion that there was no error in the judgment. If Edward Toney Joseph 
Scott be in fact two persons, it should have appeared with such certainty on the 
face of the indictment as not to be mistaken. We may infer that more than one 
person was intended from the addition "laborers" being in the plural number, and 
from their being described as "possessors and occupiers of a house," &c. But this
 should have been made certain, and not left to inference. If Edward Toney Joseph
 Scott be two persons, there is no certainty upon the indictment as to their names. 
They might be Edward and Toney Joseph Scott--or Edward Toney Joseph and Toney Joseph
Scott--or other changes might be rung on the name.
Judgment affirmed.
Tex. 1854.
THE STATE v. EDWARD TONEY.
13 Tex. 74, 1854 WL 4463 (Tex.)
END OF DOCUMENT


*1 In the construction of acts of the same session, the rule is that the whole must be 
taken as one act; and to make a latter provision repeal a former, there must be an 
express repeal, or an irreconcilable repugnancy between them; and then the latter 
will control. 5 Tex. 418; 7 Tex. 76; 8 Tex. 62; 17 Tex. 596; 26 Tex. 178; 27 Tex. 68.
The codes were designed to form a system of criminal law complete in itself. That was
 the theory. But it was not supposed that they were already sufficiently perfected to
 meet all the exigencies and wants of society; and hence other laws upon the subject 
were enacted from time to time, as the occasion suggested.
The act to authorize the county courts of the state to grant a license for the retail
 of spirituous, vinous and other intoxicating liquors in quantities less than a quart,
 and imposing a license tax for such privilege, approved February 2d, 1856, was not 
repealed by the penal code and code of criminal procedure enacted at a subsequent 
period of the same session.
Where two defendants were jointly indicted for the violation of a license law, and
 the jury "found them guilty and assessed the fine at fifty dollars," upon which the 
court below rendered judgment against each defendant for fifty dollars, it was held, 
on appeal, that the judgment should have been rendered against the defendants jointly 
for fifty dollars only, and it was reformed accordingly.
Appeal from Bastrop. Tried below before the Hon. A. W. Terrell.
Indictment charging Barney Cain and John Persons with selling intoxicating liquors, on 
the first day of July, 1857, in quantities less than a quart. Motion to quash the indictment
 on the ground that there was no such offense known to the laws of the state. Motion 
overruled. Verdict as follows: "We, the jury, find the defendants guilty, and assess 
the fine at fifty dollars." Judgment against each defendant for fifty dollars.


Defendants jointly indicted, "whom the jury found guilty and assessed the fine at $50." 
must pay jointly, and not $50 each.


One act will not be construed as repealing by implication another act passed at the same
 session, unless they are repugnant.


The Criminal Code repealed all acts relating to crimes and punishments, but did not 
repeal the liquor license law passed at the same session, to which no reference was 
made in the Code, and which was expressly recognized by a subsequent act.
C. C. & A. D. McGinnis, for appellants. I. The penal code and code of criminal procedure,
 adopted at the adjourned session of the last legislature, and approved on the 26th 
August, A. D. 1856, repealed the statute of 2d February, 1856; and there is not and 
was not at the time appellants sold intoxicating liquors in quantities less than a 
quart, any law in force prohibiting them from doing so. See Penal Code, articles 1, 
12, 15, and 54, and latter part of page 167. Also see the Code of Criminal Procedure,
 preamble and section 1st. Also final title, sections 2, 3, and 4. It may be contended 
by the attorney for the state, that the statute of February, 1856, and the one adopting 
the codes, being passed by the same legislature, must be construed together; but we 
hardly deem it necessary to cite authority to this court, to sustain the position, 
that the legislature can repeal a statute the same session it was passed. But we will
 refer the court to a decision at Tyler, April term, 1857, The State v. Robinson, 
where the court held "it would be difficult to maintain that it (the law in question)
 was not virtually and impliedly, though not expressly repealed by the institution of
 an entirely new system of laws on the subject, upon the change of government;" and 
in the subsequent part of the same decision the court held the repeal would nevertheless
 be sustained, though it were not expressly intended in the repealing statute. See the 
Southern Intelligencer, vol. 2, No. 10. In the case now before the court we hardly deem
 it necessary to discuss the question of repeal of statutes by implication; for on the 
latter part of the 167th page of the penal code, the legislature, after repealing by 
enumeration various acts, use the following language: "Together with all other laws and 
parts of laws relating to crimes and punishments, are hereby repealed."
*2 II. It was error to render judgment against the defendants for fifty dollars each,
 upon a verdict finding a fine of fifty dollars against the defendants jointly.
Attorney-General, for appellee. I. The code was passed at the same session with the 
act of February 2, 1856, and a liberal construction will be adopted in order to sustain
 both enactments. 9 Bac. Abr. 225; Sedg. Con. and Stat. Law, 122, 127; Foster's Case, 
11 Co. R. 63; 3 Mon. 80; Const. of this state, art. 3, sec. 22.
II. The code, a statutory act, is a general law upon crimes and punishments. The license
 act is special. Its leading object was to regulate the business of retailing liquors, 
and to raise a revenue for special purposes. To enforce its provisions it is made penal
 to violate the act. The penal clauses then refer particularly to the single offense of 
selling without license. Sedg. Con. & Stat. Law, 123.
III. There is no repugnancy between the two acts. The first article of the code is in 
the nature of a preamble. Neither this or any other provision indicates that it was 
intended to embrace all and every offense, without regard to laws passed at the same
session upon the same subject. To constitute a repugnancy, it is necessary that two 
acts shall relate to the same subject, and shall make contradictory or inconsistent 
provisions upon that subject. The code does not profess to make any provision whatever
 for the offense of retailing liquor without license. Id. 127; Bowen v. Lease, 5 Hill
, 221; Canal Co. v. R. R. Co. 4 Gill & Johns. 1; Street v. Comm. 6 W. & S. 209; Comm. 
v. Bank, 10 Barr, 442; Brown v. County Com. 21 Penn. 37; Williams v. Potter, 2 Barb. 
(S. C.) 316; Comm. v. Herring, 6 Cush. 465.
IV. It was manifestly not intended to repeal the act of February 2, 1856, as appears 
from the history of the legislation on the subject. The codes were reported by the 
commissioners, and action had been taken upon them in the legislature before the 
passage, or even the introduction of the license law. Of course then the repealing 
clauses, which were part of the original bill, could have no reference to a statute 
not in existence, and indeed not introduced. This part of the subject is well 
discussed in the case of Delesdenier v. The State, 7 Tex., which though the decision 
of a special court, and therefore in strictness not authority, is yet entitled to all 
the weight which clear, lucid, sound and forcible reasoning can give to any case.

V. Upon the whole case it seems to be beyond controversy that both acts or rather the
 three acts may stand. Indeed, if the rule invoked in aid of the notion that the 
license law is repealed, were caried out in strictness, we might, with equal propriety,
 conclude that the penal code, which was approved the 28th of August, had repealed the
code of procedure passed two days before. If the three acts be regarded as laws upon 
the same subject, the rule laid down in the Kentucky case (3 Mon. 80) would well apply,
and they would all be held to be one act, or rather construed as if embodied in one. 
When we come to recollect that for various causes incident to legislation, an act 
introduced very early in the session may be delayed, and another subsequently brought 
forward may be first passed into a law, the propriety of the principles to which I 
have alluded, as governing the question, will be strikingly apparent.


WHEELER, J.
*3 This indictment was found under the 5th section of the act of the 6th legislature, 
entitled "An act to authorize the county courts of this state to grant a license for 
the retail of spirituous, vinous and other intoxicating liquors in quantities less 
than a quart, and imposing a license tax for such privilege," approved February 2d, 
1856. Pamphlet Acts, p. 67. The material question to be determined is whether this act
 was repealed by acts of a later date, passed by the same legislature. It is insisted 
for the appellants that it was; and we are referred, in support of this opinion, to 
several provisions of the penal code and the code of criminal procedure.
Without dwelling to quote the several provisions referred to, it will suffice to observe,
 that in none of them is there, nor is it contended that there is, an express repeal of 
the act in question, or any repugnancy to its provisions. If repealed, it must be by 
general words of repeal of former laws, or by implication.
In considering the question, it is important to observe that both the act supposed to be 
repealed, and the supposed repealing act, are acts of the same legislature. This, it is 
conceived, renders inapplicable the ordinary rules of construction employed to determine 
whether former laws have been repealed by the enactments of a subsequent legislature. 
By attending to this distinction, and applying the rule which governs the construction
 of acts passed at the same session, the question, we think, is freed from difficulty.
 The rule is, that in the construction of acts of the same session, the whole must be 
taken and construed as one act, and to make a latter provision repeal a former, there 
must be an express repeal, or an irreconcilable repugnancy between them; and then the 
latter will control. 3 Moore, 77; Sedg. on Stat. and Const. Law, 415. The case of 
Peyton v. Moseley, determined by the court of appeals of Kentucky, is a stronger case,
 it is conceived, of the apparent repeal, by the legislature, of a prior act, by one 
subsequently passed at the same session, than the legislation in question affords; 
and yet the court held there was no repeal. An act of the legislature prescribed the 
form of a recognizance to be taken in certain cases, concluding with the words, 
"witness my hand and seal." A subsequent act of the same session abolished the use 
of seals, putting sealed and unsealed instruments on the same footing. It was insisted 
that the latter act repealed the former. But the court said: "It is true, as observed 
by the court below, the expressions of this latter act are very broad, and if it had 
not passed at the same session with the former, it might, by the ordinary rules of 
construction, be held to repeal the former pro tanto. But with regard to acts passed
 at the same session, we apprehend that the rules of construction are somewhat 
different. When they are compared together, they ought to be construed as one act 
on the same subject; and the presumption of so sudden a change or revolution in the
 minds of the legislature, ought not to be indulged. There ought to be an express 
repeal, or an absolute inconsistency between the two provisions, to authorize a court 
to say that the latter had repealed the former. If both these provisions were in the 
same act, both must have effect if possible. Hence the conclusion would be, that the 
recognizance directed to be taken with a seal, in which the bail stipulated for the 
principal, ought to be held as an exception to the general provision which dispensed 
with a seal." 3 Monroe, 80. And thus the court, instead of holding acts of the same 
session, apparently repugnant, the one to repeal the other, gave effect to both, 
although in order to do so, it became necessary to engraft the former upon, or 
incorporate it in the latter act, as an exception to its provisions.
*4 In Bacon's Abridgement it is laid down that an act cannot be altered or repealed 
in the same session in which it is passed, unless there be a clause inserted expressly
reserving a power to do so. 8 Bac. Abr. 225. This, however, is dependent on a rule of 
parliament. Mr. Sedgwick, in his treatise on statutory and constitutional law, states 
this, and refers, in the same connection, to the 22d section of the 3d article of the 
constitution of this state; which, it is conceived, is confirmatory of the doctrine 
that it will not be intended, unless the action of the legislature has been such as 
to render that conclusion unavoidable, that acts passed at the same session repeal one 
another. "In the English houses of parliament (says Mr. Sedgwick) a rule prevails that
 no bill can be introduced in repeal of or in opposition to any law passed at the same
 session. And in order to obviate this, it is there the practice to insert in every bill
 a clause providing that the act may be amended or repealed at the same session. No 
general rule or practice of this kind (he adds) prevails in this country. But the 
constitution of the state of Texas contains this clause: 'After a bill or resolution
 has been rejected by either branch of the legislature, no bill or resolution embracing 
the same substance shall be passed into a law during the same session.' 'DD'
The reason of this provision is, that when a subject has once been presented to the mind
 of the legislature, and considered and acted on, it is to be presumed that they have 
acted intelligently and according to their deliberate judgment, and that to permit 
their attention to be called to the same subject again, would be but a useless 
consumption and waste of time. Hence the framers of the constitution thought proper
 to forbid it, and thus preclude the presumption, which the court in Peyton v. 
Moseley say ought not to be indulged, of so sudden a change or revolution in the
mind of the legislature. The same legislature is supposed to be actuated, in all 
that it does, by the same mind, spirit, and intention, and to have, at all times,
 the same governing objects and policy. The artificial being is supposed to have 
but one mind, and that a rational and intelligent mind; and hence the cogency of 
the presumption, affirmed by the constitution, that it will not change from day to 
day during the same session, and undo to-day what was done with so much deliberation
 and solemnity yesterday. It is not to be supposed, nothing short of expressions so
 plain and positive as to force upon the mind an irresistible conviction, or absolute 
necessity, will justify a court in presuming, that it was the intention of the legislature 
that their acts passed at the same session, should abrogate and annul one another. 
The decent respect due a co-ordinate department of the government, would seem to 
forbid that such a presumption be indulged by the court. As we had occasion to say 
in Neill v. Keese, "it would not be a reasonable mode of construing acts of the 
legislature, so to construe them as to make one act repeal another passed at the 
same session. It cannot be supposed that it was their intention that acts thus 
passed should abrogate and repeal one another." 5 Tex. 33.

*5 Even in respect to acts passed at different sessions, although it is clearly 
settled that statutes may be repealed by implication, when their provisions are 
irreconcilable, "still (says Sedgwick, p. 127) the leaning of the courts is against
 the doctrine, if it be possible to reconcile the two acts of legislature together." 
So in Pennsylvania it has been declared that act of one assembly is held to repeal 
another by implication only in cases of very strong repugnancy, or irreconcilable 
inconsistency. And so in New York it is held that unless the latter statute is 
absolutely inconsistent with and repugnant to the former, both remain in force. So too 
in Massachusetts, the latter statute must be clearly repugnant to the former to effect
 a repeal by implication. Id. 127-128; 6 Watts & Serg. 209; 10 Barr, 442; 21 Penn. 37;
 2 Barb. (S. C.) 316; 6 Cush. 465. This is the well settled doctrine; and the reason of
 it is said to be that laws are presumed to be passed with deliberation, and with a full
 knowledge of all existing ones on the same subject. Id. The doctrine, of course, 
applies with additional force of reason to the acts of the same session.
Treating of the rule that the statute last in point of time controls, Mr. Sedgwick 
says: "But it is only in cases of irreconcilable repugnancy, that this rule applies:
 it gives way to the fundamental principle, that the intention of the legislature 
is to govern." "A subsequent statute," says Parsons, C. J., "generally will control
 the provisions of former statutes, which are repugnant to it according to its strict 
letter. But there are exceptions to this rule, depending on the construction of the 
last statute agreeably to the intention of the legislature." "The general rule is 
conceded to be," it has been said in Pennsylvania, "that where two statutes contain
 repugnant provisions, the one last signed by the governor is a repeal of one 
previously signed. But this is so merely because it is presumed to be so intended by the 
law-making power. Where the intention is otherwise, and that intention is manifest upon 
the face of either enactment, the plain meaning of the legislative power thus manifested,
 is the paramount rule of construction. It is no part of the duty of the judiciary to 
resort to technical subtleties to defeat the obvious purposes of the legislative power
 in a matter over which that power has a constitutional right to control." Sedgw. 415,
 416. These observations, in respect to the repealing effect of subsequent upon former
 enactments, have reference, of course, to cases where there is such absolute repugnancy,
 as that both provisions cannot stand together, and the court is, of necessity, compelled 
to give effect to one as expressive of the legislative intention rather than another.
*6 All the rules of construction must give way, as observed by Mr. Sedgwick, to the 
fundamental principle that the intention of the legislature is to govern. Indeed, the
 design of those rules is to furnish guides to assist in arriving at the intention of
 the legislature. "The object and the only object of judicial investigation in regard
to the construction of doubtful provisions of statute law, is to ascertain the intention 
of the legislature which framed the statute." Id. 231. That intention, where it can be 
discovered, will prevail over the literal import of words. For "if," says Bacon, "from a
 view of the whole law, and from other laws in pari materia, the evident intention is 
different from the literal import of the terms employed to express it in a particular 
part of the law, that intention should prevail, for that in fact is the will of the 
legislature." 9 Bac. Abr. Statutes (J), p. 240. This doctrine was applied by the court 
in the case of The State v. Delesdenier, 7 Tex. 76, 104, 105, 106, where it was held 
that the repealing clause of the act of the 14th of December, 1837, as broad and 
sweeping in its terms as the repealing clauses of the codes, did not effect a repeal
 of a law of a former session, reserving certain lands from location.
It is a well settled rule in the construction of statutes, and for the purpose of 
arriving at the legislative intention, that all laws in pari materia, or on the 
same subject matter, are to be taken together and examined in order to arrive at the
 result. Sedg. 247. "All acts in pari materia," said Lord Mansfield, "are to be taken
 together as if they were one law." Id. There is no doctrine in relation to the 
construction of statutes more certainly settled than this: that all acts in relation
 to the same subject matter are to be taken in pari materia and considered as one act. Id. 
247-251; 6 Indiana, 83, 354. Whether, indeed, of the same or former sessions, all are to be 
looked to to arrive at the intention of the legislature, and more especially those of the 
same session.
If we look to the other acts of the same session, we find that by an act passed subsequently
 to the codes the act here in question, of the 2d of February, 1856, is directly referred
 to and recognized as being still in force. Ch. 167, sec. 1, of Acts, etc. p. 93. This 
certainly places it beyond a doubt that the legislature did not, in fact, intend, by 
adopting the codes, to repeal the act in question, whatever may have been the language 
employed in the codes. The intention being thus manifest, upon no principle or rule of 
construction, it is conceived, can it be held that it is repealed; for it is the intention 
of the legislature, constitutionally expressed, which makes the law; and having shown, by 
subsequent enactments, that it was not intended by adopting the codes to repeal the act in
 question, it is perfectly clear that their adoption cannot have that effect. According 
to an authority before quoted, since, from other laws in pari materia, it thus evidently 
appears that the real intention was contrary to the "literal import of the terms employed
 to express it in a particular part of the law, that intention should prevail, for that, 
in fact, is the will of the legislature." 9 Bac. Abr. 240. It is, moreover, manifest,
notwithstanding the apparent and expressed design and object of the codes, that the 
legislature did not intend--they cannot have intended--that these should absolutely 
and necessarily embrace all the laws of a penal nature; for they went on immediately
 thereafter and continued to enact various other penal laws, prescribing the penalty
 for a violation of their provisions in the laws themselves, passed after the adoption 
of the codes. The codes were designed to form a system of criminal law complete in 
itself. That was the theory. But it was not supposed that they were already sufficiently
 perfected to meet all the exigencies and wants of society; and hence other laws upon 
the subject were enacted from time to time, as the occasion suggested. Acts, same session,
 ch. 155, p. 84; ch. 164, p. 90; ch. 174, p. 101.
*7 If doubt remained as to the legislative intention, we might look to the history of 
the legislation upon this subject; "the old law, the mischief and the remedy;" to the 
fact that former legislation had proved ineffectual, the act of the 11th of February, 
1854, having been decided by this court unconstitutional; and from the large share it 
will be admitted to have occupied in the public and legislative mind, it would appear 
quite impossible that the same legislature which had so lately and with so much deliberation
 enacted the law, could have intended its repeal, or, indeed, that they would have adopted 
the codes, as they finally did, if they had supposed any such effect would be claimed for 
them. For it will be conceded that the enactment of a law upon the subject of the present, 
occupied as large a share of public expectation, and assumed as much prominence and 
importance in the public and legislative mind as any other measure of municipal law, 
affecting the public welfare, passed by that legislature, the codes not excepted. If 
the minds of the legislature had really undergone so sudden a revolution, it seems 
impossible to doubt that they would have made it known, and removed all occasion for
 controversy on the subject by a direct, express repeal of the act, in terms. No one,
 I apprehend, has for a moment supposed that such really and in fact was their intention. 
If the law is thought to have been repealed, it must be supposed to have happened by some
 unaccountable oversight in adopting the codes, without attending sufficiently to their 
provisions and effect; a kind of accidental repeal. But, I apprehend, laws have never been
 held to have been thus repealed, contrary to the legislative intention, unless, indeed, 
the legislature have been so unguarded and unfortunate in the use of language to express 
their intention, that it is impossible to hold otherwise than that one provision does repeal
 another, by necessary implication, because of an irreconcilable repugnancy.
It is only necessary to advert to the history of the legislation upon this subject, to bring 
home to every mind the conviction that no one has been actually misled or deceived by any 
action of the legislature, as to what their intention really and in fact was. If any have 
contravened the provisions of the law, and incurred its penalty, it has been done in known 
disregard of the legislative will.
It is a familiar and admitted rule in the construction of statutes, which this court has 
adopted and enforced, that a subsequent statute, revising the subject matter of a former 
one, and evidently intended as a substitute for it, although it contains no express words
 to that effect, must operate to repeal the former, to the extent to which its provisions
 are revised and supplied. And though a subsequent statute be not repugnant in its 
provisions to a former one, yet if it was clearly intended to prescribe the only rules 
which should govern, it repeals the prior statute. Rogers v. Watrous, 8 Tex. 62. But 
this rule was not adopted, nor is it believed, ever to have been applied to aid in 
the construction of acts passed at the same session. It has no reference to the 
revising of acts thus passed. It is not to be supposed that the mind of the legislature
 will be occupied in making a revision of laws while enacting them. A revision implies 
the re-examination, orderly arrangement, and embodiment in a new form of the former 
laws, or laws in force prior to the revision.
*8 In fine, we are not aware of any principle or precedent to warrant the court in 
holding the act in question repealed by the codes adopted at the same session. No 
case, it is believed, can be found where it has ever been held that an act of the 
legislature has been thus repealed, either by the general repealing clauses, or the 
provisions of other laws passed at the same session, where the latter were not 
repugnant to the former. Nothing short of a direct express repeal in terms, or such 
irreconcilable repugnancy as that both cannot stand together, and one consequently 
must give place to the other and operate its repeal by implication, has, it is 
believed, ever been held sufficient to justify a court in holding one act repealed 
by another passed at the same session. As there has been no such express repeal,
 and no such repugnancy is perceived between the provisions of the act in question 
and the codes, or any of their provisions, we are of opinion that the act remains 
in force; and consequently that the prosecution and conviction in this case were 
warranted by law. The judgment, however, does not follow the verdict. That assessed
 a joint fine against both defendants; and it was error to adjudge and impose the 
entire amount of punishment, so found by the verdict against the defendants jointly,
 upon each severally. The judgment must, therefore, be reversed, and such judgment 
be here rendered as the court should have rendered upon the verdict.
Judgment reformed.


ROBERTS, J., dissenting.
Not being able to satisfy myself of the correctness of the rule of construction upon 
which the very able and elaborate opinion of the majority is based, I respectfully present
 my separate views leading to a different conclusion; and will only say enough to develop 
the principles upon which they rest. The act making it a criminal offense to retail 
intoxicating liquors in quantities less than a quart was passed on the 2d day of February, 
1856, to take effect on the 1st Monday of April thereafter. The penal code was passed 
on the 28th day of August, 1856, to take effect on the first day of February, 1857; and 
contains no such provision as the liquor law. The question is whether the latter repealed
 the former. The code contains a repealing clause which, after enumerating a great many 
criminal laws of former sessions, concludes, "and all other laws and parts of laws 
relating to crimes and punishments, are hereby repealed." The word crime, as used in the
 code, signifies every grade of offense. The liquor law then being a law then in force, 
and relating to crimes and punishments, is literally embraced in this repeal.
This expression is unambiguous, and if it be not enforced as expressive of the legislative
 will, it must be upon some good reason showing that they did not mean what they have so 
plainly expressed. That reason is said to be found in the rule of construction, that the 
liquor law, the penal code, and all other acts on the subject of crime passed during the 
same session, must be considered and compared together and construed as one act. This 
would cause the liquor law to be read into the code as one of its chapters, and would of 
course evade the force of the repealing clause in the code.
*9 Before noticing the recognized limitations and restrictions on this rule, it is proper
 to examine the foundation and principle of the rule itself. It follows very naturally 
from some of the principles and practice which formerly obtained in England in the enactment 
of laws by parliament. Lord Bacon says that "an act cannot be altered or repealed in the 
same session in which it passed, unless there be a clause inserted expressly reserving a 
power to do so." 9 Bac. 225.
Originally all acts of parliament took effect from the first day of the session, although
 passed at different times, weeks and months afterwards. There was no date of approval by 
the king indorsed on the bill, and it could not be known which one of two acts first 
received its final completion. The King v. Justices of Middlesex, 2 Barn. & Ad. 344. 
Under such regulations for enacting laws as these, this rule, in their construction, 
was forced on the courts as a necessity. To such an extent was this carried that in 
Attorney-General v. Chelsea Water-Works Company, Fitzgibbon, 195, it was held that 
"when the proviso of an act of parliament is directly repugnant to the purview of it,
 the proviso shall stand and be held a repeal of the purview, as it speaks the last 
intention of the makers." The rule makes the incident tear down the principal. But 
this case illustrates that the unity of legislative will was held only because its 
divisibility was not entirely practicable; and so far as it was practicable the court 
acted on it. In more modern times the doctrine of Lord Coke has given way before the
 acknowledged sovereignty of parliament, and their right to change their will, even in
 the same session, without adopting the previous precaution of reserving the power so 
to do; and an act takes effect from the date of approval by the king, which is indorsed
 thereon. Under these changes it has been held in England that "where two acts of 
parliament, passed during the same session and to come in operation the same day, are
 repugnant to each other, that which last received the royal assent must prevail, and
 be considered pro tanto a repeal of the other." This does not maintain, as does the 
case of Peyton v. Moseley, 3 Monroe, 78, in Kentucky, that the two acts shall be read 
together as one act, and allow the repugnant part of the one to stand as an exception;
 but it admits the divisibility, and possibility of a change of the legislative will, 
and adopts as the law its last manifestation. What does the rule thus modified amount 
to, and in what does it differ from the ordinary and familiar rule, that two statutes 
relating to the same matter are to be considered and construed with reference to each
 other (not read as one act, for the reason of that has passed away) and both be made 
to stand in force, if there be no intentional repeal, inconsistency, or repugnancy 
manifested? In nothing but this, that the force of the rule is increased by the greater
 proximity of time between the two acts, passed at the same session. And this is based 
upon the reason that "the presumption of so sudden a change or revolution in the minds 
of the legislature ought not to be indulged." Peyton v. Moseley, 3 Monroe, 78. Or, in 
other words, the presumption is much stronger in favor of the unity of the legislative
 will, in the acts of the same session, than in the acts of different sessions. Still 
the court is left free to determine whether or not there is a change of intention 
manifested in the separate acts of the same session, considering all the parts of both
 acts. The mere fact, then, that these two acts were passed at the same session is not
 of itself a sufficient reason, as it is believed, for holding that the repealing 
clause of the penal code is to be totally disregarded.
*10 Did the legislature, by the adoption of the penal code, intend to repeal the liquor
 law; or did they do that which is irreconcilably inconsistent with its remaining in 
force as a law? In either event the repeal was consummated.
An examination of the subject, it is thought, will show this, both expressly and by 
implication. The constitution of the state requires that "within five years after the 
adoption of this constitution, the laws, civil and criminal, shall be revised, digested,
 arranged and published in such manner as the legislature shall direct, and a like 
revision, digest and publication shall be made every ten years thereafter." By an act
 of 10th February, 1854, it was provided "that it shall be the duty of the governor, 
by and with the advice and consent of the senate, to appoint three commissioners, 
whose duty it shall be to prepare a code, amending, supplying, revising, digesting 
and arranging the laws, civil and criminal, of the state, to be submitted to the 
legislature for their future action." This law was enacted in pursuance to the above
 provision of the constitution. Most probably the words "the laws, civil and criminal, 
of the state," as used in the constitution and statute, mean the written, and not the
 unwritten laws of the state. For this purpose, as expressed in the law, the 
commissioners were appointed and entered upon their work. They did not present one
 code of the laws, but three, to wit: a penal code, a code of criminal procedure, a 
code of civil procedure, and a volume of revised statutes. It was evidently the 
design of all these to embrace all the written laws of the state in a complete system, 
and that they should altogether stand in the place of the code which the legislature 
had directed them to prepare.
It could not fail to attract their attention, in the perform ance of their duty, that 
the constitution provided that "every law enacted by the legislature shall embrace but
 one object, and that shall be expressed in the title." They prepared the penal code 
in the shape of a single act, entitled "An act to adopt and establish a penal code for
 the state of Texas." This is divided into numerous titles relating to the various 
branches of the criminal law. And so it was adopted by the legislature. Its design is
to comprehend the whole of the criminal law in these various titles. That is evidenced
 by the very effort made to comply with this provision of the constitution as to the 
mode of enacting laws. For the "one object" here is "the penal code for the state of 
Texas;" that is, a system of written penal laws for the state. By the use of the word 
""code," the idea is precluded that it was intended to adopt a part of a system. That 
would distort and abridge the meaning of the word.
*11 This however is not left to presumption from the use of particular words, but is 
plainly expressed in the first article of the code itself, which reads, "Article 1. 
The design of enacting this code is to define in plain language every offense against
 the laws of this state, and to affix to each offense its proper punishment." This does
 not say some, many or most of the offenses, but every offense against the laws. If we 
admit for a moment the hypothesis that the legislature intended to make this code 
exclusively complete within itself, at the moment of its adoption, thereby excluding
 every other law, written and unwritten, how could they have expressed that intention
 more directly and explicitly than they have here done?

In prescribing a rule of construction, the 9th article reads: "This code and every 
other law upon the subject of crime, that may be enacted, shall be construed according
 to the plain import of the language in which it is written," etc. It is hardly 
reasonable to infer that the legislature intended to prescribe a rule of construction
 for the code and subsequent penal laws, different from that which would apply to 
prior laws. We must conclude, then, that they did not contemplate that there would 
be any laws left in force to be construed, which were prior to the code.
Again, in part II, it reads as follows, to wit:

"TITLE I.
DEFINITION AND DIVISION OF OFFENSES.
Art. 54. An offense is an act or omission forbidden by positive law, and to which is 
annexed, on conviction, any punishment prescribed in this code."
Here we are presented with a studied effort at accuracy and precision in giving the 
definition of an offense in the state of Texas, and one of the prominent and necessary 
elements of that definition is, that there must be a punishment prescribed in "this 
code." This would necessarily exclude all penal laws in force prior to the adoption 
of the code. It is no answer to this to say that the definition would equally exclude 
offenses, subsequently made; for the legislature have not the power to limit or control
 subsequent legislation, either at the same or subsequent sessions, as they have former 
legislation. So, too, in declaring to what persons the criminal law applies, it is provided
 in title III, and art. 36, that "No act done within the uninhabited portions of the state,
 by individuals belonging to the several Indian tribes, in their intercourse with each other
 or with other tribes, and affecting no other person, is considered as an offense against this
 code," etc. To finish fully the exclusive completeness of this code, as the system of penal
 laws for the state, the section next to the last reads: "Section 2. The following acts and 
parts of acts, to wit:" (here fifty acts and parts of acts are enumerated) "together with 
all other laws and parts of laws, relating to crimes and punishments, are hereby repealed."

*12 If then the legislature intended that this code should be a complete system of penal 
laws within itself, they could not have intended otherwise than that any previous enactment,
 not embraced in it, should not be a penal law.
It may be presented in another point of view equally favorable to its repeal, not expressly,
 but by implication. It is well established upon authority, that "a subsequent statute, 
revising the whole subject-matter of a former one, and evidently intended as a substitute 
for it, although it contains no express words to that effect, must, on the principles of 
law as well as in reason and common sense, operate to repeal the former." And this is the
 case, too, when distinct provisions of the former act are omitted in the latter. Bartlett
 and others v. King, 12 Mass. 537; Sedgwick on Con. & Stat. Law, 126.
If the correct view of the scope and object of the code has been taken, it certainly is a 
revision of the entire penal laws of the state; and there are various considerations 
indicating that it was intended to be a substitute for all former penal laws. For years 
past, prior to the adoption of the code, acts of the legislature have been passed, amended,
 and changed with reference to the common law, as the fundamental basis of our system of 
penal laws. And this process continued during the session which adopted the code down to 
the time of its adoption, and even afterwards by inadvertence as may be supposed. Not a 
single act, passed that session, either at the first part of it or at the adjourned session
 as it is called, makes the least reference directly or indirectly to the penal code, 
except alone the code of criminal procedure. Even the acts relating to crimes, which were
 approved after the approval of the code, make no reference to it, but on the contrary 
make reference, either by the enacting or repealing clause, to the former acts. For 
instance, on the 1st September, 1856, two days after the approval of the code, an act 
was approved concerning public weighers of cotton, and making a penal offense relating
 thereto; when the code had made the same thing, substantially, a penal offense; but 
there is such a difference in the language as to rebut the idea that one was passed 
with any reference to the other. Code, art. 469; Acts, 90. On the same day an act was
 approved prohibiting the sale of liquor in Jamestown and Starrville, and imposing the
 penalty prescribed in the liquor law of 2d February, 1856. From which it may be inferred 
that the legislature regarded the latter act still in force. But this will not hold good;
 for on the 30th August, 1856, after the approval of the code, an act is approved 
preventing slaves from carrying guns, etc., and the same act repeals the sixth section 
of the act of 1840, which had been expressly enumerated and repealed by the repealing 
clause of the code. The same day the liquor law was passed, 2d February, 1856, another 
act was passed, making it a penal offense to forge, alter, etc., any instrument to get
 a patent, etc. The latter is substantially inserted in the code, and the former is 
entirely omitted. The liquor law, although it was introduced into the legislature 
after the code was, as it is stated by the attorney general, still it makes no reference
 thereto, but on the contrary repeals the act of 1854. Thus it is obvious that the 
legislature had in view the amendment of the old system, in the passage of these 
various acts, except the two criminal codes; they constituting a new system, that 
might or might not be adopted. The minds of the legislators were necessarily led to 
regard
 the old and the new systems in contrast, as to which of the two should be the future 
rule. Both were being perfected at the same time, not in harmony, but in antagonism; not
 for joining them together in unison, but for adopting one and rejecting the other.
*13 Two bodies cannot occupy the same space at the same time, so the code being adopted,
 became a substitute for the common law and all its perfecting and amending statutes, 
which were passed prior to the code; and the liquor law of 2d February, 1856, being one
 of them, was repealed by the code. Those passed after the code must stand, though not in 
harmony with it, because they are the last expression of legislative will, and cannot 
therefore be disregarded by force of what is intended in the code, which is as to them 
the anterior law. If it be said on the one side, that there is no precedent for this, 
it may be answered on the other, that there is perhaps no similar case to be found, 
where a criminal code has been adopted, assuming to embrace all the law on the subject.
 And, therefore, the question must be resolved on principle. Penal laws should not only
 be plain, but they should be plainly not repealed when they are enforced; especially 
if they belong to the class of offenses mala prohibita. Other considerations might be 
presented, conducing to the conclusion here arrived at, but sufficient has been said 
to develop the basis of the opinion.
Tex. 1857.
BARNEY CAIN AND ANOTHER v. THE STATE.
20 Tex. 355, 1857 WL 5252 (Tex.)
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