Murphy v. State. MURPHY V. THE STATE. (Nashville. December Term, 1904.) 1. STOCK LAW. Not unconstitutional because applicable to counties of certain population only. The Act of 1903 (ch. 499) to prohibit the running at large of hogs, sheep and goats in counties having a population of not less than 25,000 and not more than 25,100, according to the federal census of 1900, or any subsequent federal census, is not arbitrary and vicious class legislation, within the prohibition of article 11, section 8, of the constitution, but is constitutional and valid. Act cited and construed: 1903, ch. 499. Cases cited and approved: Peterson v. State, 104 Tenn., 128; Turner v. State, 111 Tenn., 593; Cook v. State, 90 Tenn., 407; Condon v. Maloney, 108 Tenn., 82; Archibald v. Clark, 112 Tenn., 532. 2. SAME, Violation of, not indictable where civil remedy only is provided. Said Act (1903, ch. 499) provides a civil remedy in the nature of an action for damages, enforceable by means of a lien on the offending stock, and does not declare a violation of the act to be a misdemeanor or indictable; hence the remedy provided by the act is exclusive, and a criminal prosecution cannot be predicated thereon. Cases cited and approved: State v. Maze, 6 Humph., 17; State v. Lorry, 7 Baxt., 95; State v. Manz, 6 Cold., 557. FROM ROBERTSON. Appeal in error from the Circuit Court of Robertson County.-B. D. BELL, Judge. Murphy v. State. J. B. FORT and TRUE & DORSEY, for Murphy. ATTORNEY-GENERAL CATES, for the State. MR. JUSTICE SHIELDS delivered the opinion of the Court. The plaintiff in error, Murphy, was indicted and convicted in the circuit court of Robertson county for permitting his hogs to run at large in that county, and adjudged to pay a fine of $25, from which judgment he has brought the case to this court by appeal in the nature of a writ of error. The indictment is preferred under chapter 499, p. 1342, of the Acts of the general assembly of 1903, entitled "An act to prohibit the running at large of hogs, sheep and goats in counties having a population of not less than 25,000, and not more than 25,100, according to the federal census of 1900, or any subsequent federal census." Section 1 of this act provides that it shall be unlawfull for the owner or any one having control of hogs, sheep and goats to allow them to run at large in counties of this State having a population of not less than 25,000 nor more than 25,100 according to the federal census of 1900 or any subsequent federal census. Section 2 provides for a lien upon stock allowed to run at large in violation of this act, and its enforcement for damages done by such stock; and section 3 allows any one upon whom such stock may trespass to confine Murphy v. State. it and recover of the owner reasonable compensation for its keep, for which a lien is also given. Section 4 provides that the act shall not operate as a repeal of the railroad stock and fence law, and by section 5 it is made effective from and after its passage. The first error assigned is that this act violates article 11, section 8, of the constitution of Tennessee, and is therefore invalid. The statute is not subject to this objection. It is now well settled that statutes of this character are not arbitrary and vicious class legislation within the prohibition of this provision of the constitution, but are constitutional and valid. Peterson v. State, 104 Tenn., 128, 56 S. W., 834; Turner v. State, 111 Tenn., 593, 69 S. W., 774; Cook v. State, 90 Tenn., 407, 16 S. W., 471, 13 L. R. A., 183; Condon v. Maloney, 108 Tenn., 82, 65 S. W., 871; Archibald v. Clark, 112 Tenn., 532, 82 S. W., 310. The other error assigned is that the statute does not make the violation of it a misdemeanor, but provides a civil remedy against all violators, and therefore no criminal action can be predicated upon it. This point is well taken, and must be sustained, upon the authority of the cases of State v. Maze, 6 Humph., 17; State v. Lorry, 7 Baxt., 95, 32 Am. Rep., 555; and State v. Manz, 6 Cold., 557. The judgment of the circuit court is therefore reversed, and the case dismissed. Pressly v. State. PRESSLY V. STATE. (Nashville. December Term, 1904.) 1. INTOXICATING LIQUORS. Gift to minor. Standing permission from parent no defense. It is no defense to a prosecution for giving intoxicating liquors to a minor that the giver held a written permit from the mother of the minor to give any of her children drinks of whiskey or brandy at any time he might desire to do so; and it is not error to refuse to permit the defendant to introduce such writing in evidence. Code cited and construed: Sec. 6786 (S); sec. 5673 (M. & V.); sec. 4863 (1858). 2. MISDEMEANOR. When statute provides punishment, any other excluded. When a statute creates a misdemeanor, but is silent as to the punishment, the law provides fine and imprisonment, or either, at the discretion of the court; but where the statute creating an offense prescribes a special form of punishment therefor, any other or additional punishment is excluded. Cases cited and approved: Atchison v. State, 13 Lea, 275; Wickham v. State, 7 Cold., 525; Durham v. State, 89 Tenn., 723; Kittrell v. State, 104 Tenn., 522; Thompson v. State, 105 Tenn., 177; Robinson & Walker v. State, 2 Cold., 181; State v. Keeton, 9 Baxt., 559; State v. Maze, 6 Humph., 17; State v. Lorry, 7 Baxt., 95; State v. Manz, 6 Cold., 557. Code cited: Secs. 6437, 7202, 7212 (S); secs. 5347, 6068, 6078 (M. & V.); secs. 4596, 5229, 5237 (1858). 3. JUDGMENT OF COURT. Erroneous judgment as to imprisonment corrected in supreme court. Where the trial court, after properly imposing a fine, erroneously Pressly v. State. added imprisonment, the supreme court will modify the judg ment by striking out the imprisonment, and affirm the judg ment as modified. Case cited and approved: Griffin v. State, 109 Tenn., 17. FROM PUTNAM. Appeal in error from the Circuit Court of Putnam County.-CORDELL HULL, Judge. JOHN TUCKER, for Pressly. ATTORNEY-GENERAL CATES, for the State. MR. JUSTICE NEIL delivered the opinion of the Court. The plaintiff in error was indicted and convicted in the circuit court of Putnam county on a charge of giving liquors to a minor without the consent of his parents. He was thereupon sentenced to pay a fine of $10 and to six months' confinement in the county workhouse. From this judgment he has appealed and assigned errors. The statute under which he was indicted is found in Shannon's Code, section 6786, and reads as follows: "It shall be unlawful for any person or individual, or firm or corporation, whether engaged or not in the manufacture or sale of any spirituous liquors, malt, or mixed liquors, their employees, agents, or servants, or |