THEATTORNEYGENEECAL
QFTEXAS
Hon. Stanley Kirk Opinion No. C- 17
District Attorney
Courthouse Re: Is Section 2, Article 126oa,
Wichita Falls, Texas Vernon's Penal Code, uncon-
stitutional?
Dear Mr. Kirk:
You have requested an opinion as to whether Section
2 of Article 1260a, Vernon's Penal Code, is unconstitutional.
You state that this request is based on the statute's usage
of the phrase "Any collection of persons" and ask if this
phrase would make the statute subject to the objection of
being vague, indefinite and general.
Section 2, Article 1260a of Vernon's Penal Code, pro-
vides as follows:
"Lynching in second degree
"Sec. 2. Any collection of persons
assembled without authorits of law for the
purpose and with the inteniion of committing
an assault and battery upon any person, or
who shall form the intention of committing
an assault and battery after so assembling
upon any person shall be deemed a 'mob' for
the purpose of this Act, and any act of vio-
lence by a mob upon the body of any person,
which shall not result in the death of such
person, shall constitute a lynching in the
second degree within the meaning of this Act, N
and any and every person composing a mob
which shall commit assault and battery or
which shall unlawfully shoot, stab, cut,
maim or wound any person or by any means
cause him bodily injury with intent to
injure, maim, stab, disfigure, or kill him,
if said assault shall not result in the
death of the assaulted person, shall be
guilty of lynching in the second degree and
upon conviction shall be confined in the
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Hon. Stanley Kirk, Page 2 (C- 17 )
penitentiary for not less than one (1)
year nor more than ten (10) years."
(Emphasis ours)
In order to properly dispose of the question presented,
we call your attention to the following other sections of
Article 1260a as they appear in the actual legislative enact-
ment, Acts 51st Legislature, 1949, Chapter 582, Page 25.
"Sec. 5. Nothing in this Act shall
repeal any existing laws relating to of-
fenses against the person and nothing
herein shall repeal existing laws relating ,
to unlawful assemblies, and rioting but
the provisions of this Act shall be cumu-
lative to these statutes."
"Sec. 6. The fact that the State of
Texas has no specific laws to punish mobs
committing lynching.., ."
Initially, several observations concerning Article
1260a as a whole are deemed pertinent. By the enactment
of Article 1260a, the Legislature has defined the offense
of lynching and established both a first and second degree
of the offense depending on whether death resulted from
the unlawful actions of a mob. A careful reading of this
statute, in regard to the type of offense created, reveals
a particular similarity between it and the statutes dealing
with Unlawful Assemblies and Rioting codified in Articles
439-472, Vernon's Penal Code. Unlawful Assembly requires
three (3) or more persons as does Rioting, which has been
held to be a compound offense requiring both anunlawful
act and an unlawful assembly. .Blackwell v. State, 18 S.W.
676 (Tex.Crim. 1892).
These statutes then all deal with the unlawful and
unauthorized actions of groups variously referred to as
unlawful assemblies, riots and mobs. An examination of
the various definitions given to these three terms reveals
a great similarity, and that one can not be easily defined
without reference to the others. The word "mob" is said
to not be a strictly legal term but a vernacular word des-
criptive of a large and aggravated riot, and it is variously
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Hon. Stanley Kirk, Page,3 (C- 17 )
defined as a riotious assemblage in Century Dictionary,
and as a disorderly or riotious gathering or assemblage
in the Standard Dictionary. Bouvier Law Dictionarysays
that mob, in a legal sense, is practically synonomous
with riot although the latter is the more correct term.
In view of the foregoing and the additional fac-
tors discussed later, we call your attention to Article
6 of the Penal Code which provides:
*Whenever it appears that a provi-
sion of the penal law is so indefinitely
framed or of such doubtful construction
that it can not be understood, either
from the language in which it is expressed,
or from some-other written law of the
St t h 1 law shall b e regarded
&&l?~in$%~ative." (Emphasis ours)
Consistent with all of these factors, we feel that
the rule as set out in 39 Tex.Jur. 45, 46, Sec. 22 is con-
trolling:
"A statute, and especially a criminal
or penal act should be reasonable clear and
plain and its provisions so certain, defi-
nite and specific that the enactment can be
understood-and applied, at least when con-
sidered in connection with other acts in
pari materia." (Emphasis ours)
It is a well settled rule of statutory construction
that statutes which deal with the same general subject
having the same general purpose or relating to the same per-
son or thing or class of persons or things are considered
in pari materia. 39 Tex.Jur. 253 et seq., Sec. 135; 2
Sutherland on Statutory Construction (3rd Ed., 1943) 535
et seq., Sec. 5202.
The above rules taken in consideration with the
cardinal rule of statutory construction, viz: the ascer-
tainment of legislative intent, and applied to the statute
in question here leads us to the conclusion that the
statutes relating to unlawful assemblies and to rioting
are in pari materia with the mobs and lynching statute,
Article 126Oa.
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Hon. Stanley Kirk, Page 4 ,(C-17 )
Therefore, we construe the words "any collection of
persons" in the context used to mean three (3) or more.
Consistent with this view we call your attention to the in-
dictment form as set out in Willson's Tex. Crim. Forms Ann.
(6th Ed., 1956) p. 348, Sec. 1686. We also refer you to
2 Branch's Ann. Penal Code (2d Ed., 1956) 439, wherein Arti-
cle 126oa is listed as a Collateral Statute to Unlawful
Assemblies under Offenses Against the Public Peace.
In support of the views heretofore expressed, we
must point out that there is no reported case in Texas under
this Article. However, in Zmunt v. Lexa, 175 N.E. 458,459,
37 Ohio App. 479 the following statute was construed:
"Section 6278, General Code: 'a
collection of people assembled for an
unlawful purpose and intending to do
damage or injury to any one, or pre-
tending to exercise correctional power
over other wersons bv violence and with-
out authority of law"shal1 be deemed a
mob for the purpose of this chapter.'"
The Court held that a:
"'Collection
.,. , of people' is the same
,.
as a getting togetner 0s people, or an
assemblage of people, and, while the
statute does not state as to how many
persons would constitute such a 'collec-
tion of people*,... borrowing the common-
law conception, it is generally well
settled that it means 'a number of per-
sons not less than three (3).'" (Emphasis
ours5
The distinct similarity of the type of statute and
the holding with regard to an almost exact phrase is per-
suasive and supports the conclusion that we have reached
herein.
Article 1 of Vernon's Civil Statutes provides:
"The Common law of England, so far as
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Hon. Stanley Kirk, Page .5 (C-17 ):
it is not inconsistent with the Consti-
tution and laws of this State, shall
together with such Constitution and laws,
be the rule of decision, and shall con-
tinue in force until altered or repealed
by the Legislature."
Where it has not been changed by the statutes,
common law is followed in criminal as well as in civil
matters. State v. Anderson, 119 Tex. 110, 26 S.W.2d 174
(1930).
In reaching the conclusion that Article 1260a is
constitutional, we are mindful of the requirement that the
Legislature clearly define every crime to avoid doubtful
construction.
It is our opinion, however, that the judicial rule
resolving all doubts and giving effect to every reasonable
intendment and presumption in favor of the validity and
constitutionality of the statute is controlling here. There-
fore, we find that the phrase “any collection of persons"
is not so vague, ambiguous and indefinite as to render
Article 126oa, Section 2, unconstitutional.
SUMMARY
Section 2 of Article 1260a is con-
stitutional; and the phrase therein, "any
collection of persons," means three (3)
or more persons.
Very truly yours,
WAGGONER CARR
Attorney General of Texas
E%%!&qL
Assistant Attorney General
PP:nss
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Hon. Stanley Kirk, Page 6 ~(C- 17 )
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Booth
John Reeves
Joe R. Long
Scott Garrison
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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