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The defendant filed a motion for a new trial, setting forth numerous grounds therefor, and in support of one of such grounds offered to prove by the testimony of the foreman of the jury that he (the foreman) was "misled and deceived by the form of the verdict, and would not have signed it had he known its real meaning;" but the court refused to permit such testimony to be introduced, and overruled the motion for a new trial, and rendered judgment against the defendant, sentencing him to confinement and hard labor in the penitentiary for the term of one year, and for costs. To reverse this judgment the defendant now appeals to this court.
We think the court below erred in refusing to grant a continuance. The absent witness resided in Norton county, the county in which the trial was had, and was at home only a few days before the trial. Where he was at the time of the trial is not shown, except that he was not present at the trial. He was an important witness, being an eye-witness to all the difficulties and troubles occurring between the defendant and Johnson, furnishing the foundation for this prosecution. The affidavit set forth all these matters, and also set forth what the witness would testify to, which testimony would have tended to show that the defendant, in shooting and wounding Johnson, acted in self-defense; and the affidavit also stated that the attendance of the witness could be procured at that term or the next term of the court. We think the continuance should have been granted, at least for a few days, if not for the term. State v. Roark, 23 Kan. 147.
This refusal to grant the continuance was probably the only material error which the court below committed. The information set forth facts sufficient to constitute the offense of assaulting and wounding Johnson, with intent to commit murder, under section 38 of the act relating to crimes and punishments; and the facts as thus set forth also constituted the offense of wounding under such circumstances as would constitute manslaughter, if death had ensued, under section 42 of the crimes and punishments act; that is, the offense charged in the information, under section 38, included the offense of which the jury found the defendant guilty under section 42. Under such an information we think the jury were at liberty to find the defendant guilty of either of the offenses charged, as the evidence would justify. State v. Fisher, 8 Kan. 208; Jarrell v. State, 58 Ind. 293; State v. Waters, 39 Me. 54; State v. Phinney, 42 Me. 384; State v. Butman, 42 N. H. 490; State v. Nichols, 8 Conn. 496; Kilkelly v. State, 43 Wis. 604; State v. White, 45 Iowa, 325; Robinson v. Com., 16 B. Mon. 609. And, generally, we think that wherever a person is charged upon information with the commission of an offense under one section of the statutes, and the offense charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense. Crim. Code, §§ 121, 122; State v. Watson, 30 Kan. 281; S. C. 1 Pac. Rep. 770; State v. O'Kane, 23 Kan. 244.
The court certainly did not err in refusing to permit the foreman of the jury to testify that he was "misled and deceived by the form of the verdict, and would not have signed it had he known its real meaning." No authority can be found that will sustain such a practice.
For the error above mentioned the judgment of the court below will be reversed, and cause remanded for a new trial.
(All the justices concurring.)
(34 Kan. 283)
CITY OF GARDEN CITY V. ABBOTT.
Filed November 7, 1885.
ATTORNEY AT LAW-LICENSE TAX.
Under an act of the legislature giving to cities of the third class the power to levy license taxes upon attorneys at law residing in the city, such cities have no power to levy license taxes upon attorneys at law having offices in the city and doing business therein, but who do not reside in the city.
Appeal from Finney county.
Frush & Cartright, for appellant.
A. J. Abbott, for appellee.
VALENTINE, J. This was an action brought in the police court of Garden City, a city of the third class, by the city attorney against A. J. Abbott for an alleged violation of a certain ordinance which provides, among other things, as follows:
"Section 1. Every person now or hereafter doing business in the city of Garden City shall pay a license tax and procure a license as provided in this ordinance for each and every branch of business engaged in."
* Attorneys at law shall pay a license tax of $8 per year. "Sec. 17. Each and every person who does now or shall hereafter conduct or engage in any business or occupation in the city of Garden City for which a license is required by this ordinance, without first obtaining a license and paying a license tax therefor, as provided in this ordinance, and every person who shall violate the provisions of this ordinance, shall be fined not less than $5 nor more than $50, and costs of suit."
The defendant was charged with violating that provision of the ordinance which requires that "attorneys at law shall pay a license tax of $8 per year." He was tried and found guilty in the police court, and fined in the sum of $10, and adjudged to pay the costs. From this sentence and judgment he appealed to the district court. In the district court the defendant moved to quash the proceedings, for the reason that no offense was charged against him, and the district court sustained the motion and discharged the defendant; to which ruling the plaintiff, Garden City, excepted, and now brings the case to this court.
The city ordinance under which the defendant was prosecuted is based upon section 48 of the third-class city act, which provides, - among other things, as follows:
"Sec. 48. The city council shall have authority to levy and collect a license tax on auctioneers, *** wagons, and other vehicles used in the city for pay, ** attorneys at law, and physicians residing in such city.' The defendant is an attorney at law, and has an office in Garden City, and practices law therein; but he does not reside in the city. The ordinance, however, is broad enough to include all attorneys at law who do business in Garden City, whether they reside therein or not; but it is claimed by the defendant that the city has no authority to pass an ordinance requiring a license tax from an attorney at law residing outside of the city, although his office may be in the city, and although he may do business therein; and the court below so held, and we think correctly. Section 48 of the third-class city act expressly gives authority to the city council to levy license taxes upon various persons, other than attorneys at law and physicians, carrying on business in the city, regardless of where they reside; and upon such wagons and other vehicles as are used in the city for pay, without reference to where the persons who use or own them reside; but with regard to attorneys at law and physicians the section seems to make an exception. As to some persons, the locality of their business in the city determines whether they are to be taxed or not. As to wagons and other vehicles, their use for pay in the city determines whether they are to be taxed or not; but as to attorneys at law and physicians, their residence in or out of the city determines whether they are to be taxed or not. No authority is given by section 48, or by any other section of the statutes, to levy license taxes upon attorneys at law or physicians, except where they reside within the limits. of the city.
No other question has been presented to this court, and upon this question we think the decision of the court below is correct, and therefore its judgment will be affirmed.
(All the justices concurring.)
(34 Kan. 269)
STATE v. SHOWERS.
Filed November 7, 1885.
Where a repealing statute contains a special saving clause, the general saving statute contained in section 1, c. 104, of the General Statutes (Comp. Laws 1879, c. 104, § 1) will not apply, and no rights or remedies will be saved except such as are saved by the special saving clause.
Appeal from Morris county.
S. B. Bradford, Atty. Gen., and J. M. Miller, for appellee. Kellogg & Sedgwick, J. K. Owens, Maloy & Kelley, for appellant. VALENTINE, J. On April 23, 1883, the grand jury of Morris county, Kansas, returned an indictment against J. B. Showers, the fourth count of which indictment charged the defendant with selling. intoxicating liquors in violation of law on February 20, 1885. The .
defendant was tried and convicted under the said fourth count of said indictment, and was sentenced to pay a fine of $150 and stand committed to the jail of Morris county until the fine and costs were paid; and from this sentence the defendant now appeals to this court. The offense of which the defendant was found guilty was committed in violation of section 7 of the prohibitory liquor law as enacted in 1881, and the prosecution for such offense was commenced and conducted to its final termination after said section had been amended and the original section repealed by an act taking effect March 10, 1885; and the first question presented to this court, and which is admitted to be involved in the case by counsel for both the prosecution and the defense, is whether the defendant could be punished for a violation of the old section when the prosecution had not been commenced until after it had been amended and repealed. What the old section contained, and what the new section contains, may be seen from the following, the words in parenthesis being the words which the old section contained, but which are omitted from the new, while the words in italics are the amendments inserted in the new and not contained in the old, the other words being common to both sections:
"Sec. 7. Any person without taking out and having a permit to sell intoxicating liquors as provided in this act, or any person not lawfully and in good faith engaged in the business of a druggist, who shall, directly or indirectly, sell or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars, and (or) be imprisoned in the county jail not less than thirty days nor more than ninety days; and for a second offense shall be fined in any sum not less than two hundred dollars nor more than five hundred dollars, or be imprisoned in the county jail not less than sixty days nor more than six months; and for a third and every subsequent offense shall be fined in a sum not less than five hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail not less than three months nor more than one year, or shall suffer both such fine and imprisonment in the discretion of the court."
Section 19 of the act of 1885 contains a clause repealing the sec tions amended, and also a saving clause, which section reads as fol lows:
"Sec. 19. Original sections two, three, four, seven, eight, nine, twelve, thir teen, and twenty-one of the said act, to which this act is amendatory and sup plemental, are hereby repealed. All prosecutions pending at the time of the taking effect of this act shall be continued the same as if this act had not been passed."
There is also a general saving statute in force, which reads as follows:
"Section 1. In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute: First. The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed,
any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactinent." Comp. Laws 1879, c. 104, § 1.
This general saving statute has several times been considered and construed by this court. Willetts v. Jeffries, 5 Kan. 473; Gilleland v. Schuyler, 9 Kan. 569; State v. Boyle, 10 Kan. 113, 116, 117; State v. Crawford, 11 Kan. 32; Jenness v. Cutler, 12 Kan. 500, 511, 512; In re Petty, 22 Kan. 477. It seems to be admitted by counsel for the state that the new section 7 cannot apply to this case; for to make it apply would render it an ex post facto law, unconstitutional and void. It also seems to be admitted by counsel for the state that without any saving statute the repeal of the original section 7 would be absolute, and no prosecution could be had under that section. It also seems to be admitted by counsel for the state that the saving clause in section 19 of the act of 1885 is not broad enough to cover this case, but includes only "prosecutions pending at the time of the taking effect" of the act, and therefore that if no other saving statute can be found which will save prosecutions like the present, the present prosecution cannot be maintained.
The law in all these respects is unquestionably settled to be just as the counsel for the state seem to admit it to be. But counsel for the state claim that the general saving statute found in section 1, c. 104, of the General Statutes, as heretofore quoted, applies to this case and authorizes the present prosecution under the original section 7, although the prosecution was not commenced until after the original section 7 was repealed. But this can hardly be a correct interpretation of the law; for the legislature in absolute terms repealed original section 7 before this prosecution was commenced, saving only such prosecutions as had already been commenced under the original section, and were pending at the time the act of 1885 took effect. The question as to what should be repealed and what saved was before the legislature. They had the entire subject-matter thereof under consideration, and evidently intended to cover the entire ground; and evidently intended that nothing should be repealed except what they expressly repealed, and that nothing should be saved except what they expressly stated should be saved. They expressly saved some things; therefore it must be inferred that they intended to save no others. Expressio unius est exclusio alterius. The legislature evidently intended that the special saving clause which they enacted in section 19 of the act of 1885 should take the place of all others, so far as prosecutions under original section 7 were concerned; and that in cases where the special saving clause could apply the general saving statute should have no operation. "It is a well-settled rule of construction that specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law which might otherwise be broad enough to include