There is but one question raised on this rehearing necessary to pass upon. Appellant contends, in effect, that because articles 551, 572 and 573 make the same acts misdemeanors punishable by fine only, which articles 558 and 559 of said Code make felonies, punishable by imprisonment in the penitentiary, that they are in fatal conflict, nullify each other, and said felony articles, making it a felony to knowingly permit gambling on property, under one's control, are not now in force, and this conviction can not stand.
This makes it necessary for us to review these several articles, the date of their enactment, their purpose and object, and the effect of placing articles 551, 572 and 573 in said Code of 1911.
Article 551 of the 1911 Code was the Act of 1901, page 267, which amended and completely took the place of article 382, as it was, of the Revised Code of 1895. This article as it was enacted by said Act of 1901, was:
"Article 551 (382). If any person shall keep or exhibit for the purpose of gaming, any gaming table or bank of any name or description whatever, or any table or bank used for gaming which has no name, or slot machine, any pigeon-hole table, or jenny lind table, or nine or ten pin alley, table or alley of any kind whatever, regardless of the number of pins, balls or rings used for gaming, and such pigeon-hole table or jenny lind table, or nine or ten pin alley, table, or alley of any kind whatever, regardless of the number of pins, balls or rings used or slot machines, shall be considered as used for gaming if the table fees or alley fees, or money or anything of value is bet thereon, or shall be in any manner interested in keeping or exhibiting any such table or bank, or nine or ten pin alley, table or alley of any kind whatever, *Page 322 regardless of the number of pins, balls or rings used, or slot machines, at any place, he shall be punished by a fine of not less than twenty-five nor more than one hundred dollars and imprisonment in the county jail for not less than ten nor more than ninety days, regardless of whether any of the above mentioned games, tables, banks or alleys are licensed by law or not."
Said articles 572 (389) and 573 (390), as they were in the said 1895 Revised Code, are copied literally in said 1911 revision and they are, respectively:
"Article 572 (389). If any person shall permit any game prohibited by the provisions of this chapter to be played in his house, or a house under his control, the said house being a public place, or the said premises being appurtenances to a public place, he shall be fined not less than twenty nor more than one hundred dollars."
"Article 573 (390). If any person shall rent to another a room or house for the purpose of being used as a place for playing, dealing or exhibiting any of the games prohibited by the provisions of this chapter, he shall be fined not less than twenty-five nor more than one hundred dollars."
While the Thirtieth Legislature was in regular session in 1907, the horrible tragedy of the killing of Mr. McLain, the county attorney of Tarrant County, by a gambler, occurred, caused by the attempted enforcement by Mr. McLain of the gaming laws as they then existed. This so aroused public sentiment all over the State, and the said Legislature, all of which has heretofore been recited by the opinions of this court, that said Legislature was induced to take up and revise in many particulars the gambling statutes as they then existed, and they passed the Act of March 28, 1907, page 107, making the penalties much more severe.
The title to this Act, among other things, says that it is an Act to amend article 388 of the Penal Code and to add to said Code articles 388a to 388n, inclusive, "and generally to suppress gambling; repealing all laws in conflict therewith and declaring an emergency." Then enacts article 388 and adds 388a to 388n, inclusive, which are now articles 557 to 571, inclusive, of our Code. In the emergency clause, which is section 2 of said Act, it is stated: "The prevalence of gaming in this State in defiance of good morals and of a sound public policy, and the inadequacy of the statutes of this State to suppress the evil, create an imperative public necessity demanding the suspension of the constitutional rule requiring bills to be read on three several days," and thereby suspends said constitutional rule as authorized by the Constitution, and enacts that said Act shall take immediate effect. Said article 388a, as enacted by that Act, is as follows:
"Article 388a. If any person shall, directly or as agent or employe for another or through any agent or agents, keep or exhibit, for the purpose of gaming, any policy game, any gaming table, bank, wheel or device of any name or description whatever, or any table, bank, wheel *Page 323 or device for the purpose of gaming, which has no name, or any slot machine, any pigeon-hole table, any jenny lind table, ten pin alley or table or alley of any kind whatsoever, regardless of the name, or whether named or not, or of the number of pins, balls, or rings used for gaming, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, wheels, devices or slot machines are licensed by law or not; provided, that any such alley, table, bank, wheel, machine or device shall be considered as used for gaming, if the table fees, alley fees, or money or anything of value is bet thereon."
In our opinion this article so enacted in 1907 was intended by the Legislature, and had the effect of taking the place of and entirely supplanting the said article 551 (382) above quoted, and by implication, if not expressly, clearly repealed it.
Article 388b of said Act is as follows:
"Article 388b. If any person shall rent to another or shall keep or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever or shall knowingly permit property or premises of which he is owner, or which is under his control to be so used, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not, and any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any fees, money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."
In our opinion this article of said Act clearly supplied and took the place of the said articles 572 (389) and 573 (390) of the Code and law as it theretofore existed and it was so intended by the Legislature, and by implication clearly repealed them.
We recognize the rule that repeals by implication is not favored, yet there is another rule which is elementary and equally as well established, and that is, where a new law covers the whole subject matter of an old, and prescribes a penalty different from that provided in the old, that the former is repealed by implication. Fleeks v. State, 47 Tex. Crim. 327. It is needless to cite the many cases of all the courts and all the text-books in support of this proposition. We think it clear as stated above that article 388a of the said Act of 1907, covered the whole subject matter of said article 382, as it then existed, and prescribed a different penalty from that of the old law and clearly had *Page 324 the effect to repeal by implication said article of the old Code, or old law.
Again, we are clearly of the opinion that said article 388b of said Act of 1907, covered the whole subject matter of said articles 389 and 390 as they then and theretofore existed, and prescribed a different penalty from what they provided and that it was the intention of the Legislature, and it had the effect of repealing by implication, the said articles 389 and 390. We deem it unnecessary to further discuss this subject and specifically point out how the said new Act covered the whole subject matter of the old for, having quoted them above, they show for themselves.
We think that this court was in error in holding that the said Act of 1907, did not repeal said article 389 of the Penal Code as announced in the case of Simons v. State, 56 Tex. Crim. 339, and that case on that point is hereby expressly overruled.
That brings us to the next question necessary to be decided and that is, what effect the recopying in the Revised Code of 1911 said repealed articles 551, 572 and 573, as well as said articles 558 and 559, repealing them, had. Did it have the effect, as contended by appellant, to invalidate each and all of said articles, the new, as well as the old, and leave this State without any law on that subject at all? We can not find any decision in this State directly deciding the point, and appellant cites none.
By the Act of March 19, 1909, page 130, the Legislature provided for the appointment of three commissioners to revise and digest the civil and criminal laws of this State, and in this respect specifically prescribed their duties. By section 1 it was enacted: "Said commissioners shall adopt such of the Revised Statutes, Civil and Criminal, as have not been repealed oramended, together with an appropriate arrangement of titles, articles, marginal references and chapter head lines, and shall not change the words or punctuations thereof except in cases of evident clerical or typographical errors; or to improve the verbiage or make clear the meaning of the text, provided the present numbering or arrangement of the articles is not required to be preserved." (Italics ours.) Then by other sections of said Act they are required to embody the result of their labors in two bills for the Thirty-second Legislature, — one containing the civil statutes, and the other, the entire body of the statutes relating to criminal law, properly indexed, annotated and digested, and report to the Governor before the meeting of the Thirty-second Legislature. All this was done and the Legislature passed the said Criminal Code as reported by said commissioners with all of said articles therein exactly as they had theretofore been. By said Act of 1909, it is seen clearly that the commissioners had no right, power or authority to enact or place in said codes any new provision, or repealed law — their duties were restricted, as shown in this respect, to adopting only such criminal laws "as have not been repealed or amended." *Page 325
Taking into consideration the history and various enactments of our gambling laws, we are of the opinion that clearly the Legislature did not intend by enacting the Code with these old repealed articles in it, to thereby invalidate and render void some of the most material provisions of our law prohibiting and punishing persons for keeping and running gambling houses and for permitting gambling in houses and places under their control. We think the history of this legislation and the enactment of the various Acts of the Legislature show clearly the reverse of any such intention, and that it all shows that the Legislature did not intend to repeal the provisions of the Act of 1907, prescribing and punishing offenses as therein prescribed. While, as stated above, we have been unable to find where the courts of our own State have expressly decided this question, we find that the courts of other States have decided the question, and said decisions and the text-book writers lay down and establish this doctrine:
Where a statute upon a specific subject has been repealed, not expressly but by implication, by the enactment of a later statute upon the same subject inconsistent with the first, and both laws are subsequently included in a revision or codification, they still have the same relative force and effect as before the codification; that is to say, the earlier remains repealed by the later statute. In such a case the presumption and fact is that the repeal of the earlier statute has been overlooked by the codifiers and Legislature. Lyon v. Ogden, 85 Maine, 374; Steele v. State, 61 Ala. 213; Mobile Savings Bank v. Patty, 16 Fed. Rep., 751; Olsen v. Haritwen, 57 Fed. Rep., 845; 2 Lewis' Sutherland Stat. Const., sec. 451, and authorities there cited. Ex parte Cox, 53 Tex.Crim. Rep.; Ex parte Muckenfuss,52 Tex. Crim. 467. Many other authorities might be cited, but we deem it unnecessary.
So that we hold that, notwithstanding said repealed articles 551, 572 and 573 are copied in said revision of 1911 by said revising commissioners, that they were not thereby re-enacted, but inadvertently and by mistake, included therein, and that the said articles of said Act of 1907, as they were before the said Code of 1911 was passed, are still the law and in force as contained in said 1911 revision.
We have been materially aided by the able brief filed herein for the State by the Hon. C.A. Sweeton, Assistant Attorney-General, as well as a collation of the authorities voluntarily furnished us in this matter by Mr. Branch, the author of Branch's Crim. Law of Texas.
The motion for rehearing is therefore overruled.
Overruled.