2. Criminal law 1144(13)-Defendant not 9. Constitutional law testifying presumably guilty. A defendant, not testifying in his own defense, is presumed guilty on review. 3. Intoxicating liquors plain as to válidity of 42-One cannot comportion of act not af One indicted for a misdemeanor and for a first offense under Pub. Acts 1917, c. 3, relat13, 132-Storage acting to unlawful storage of intoxicating liquor, could not question the validity of section 2 of the act, making a second violation a felony. not superseded by Eighteenth Amendment and Volstead Act. The storage act (Pub. Acts 1917, c 3) was not superseded and did not become inoperative by virtue of the Eighteenth Amendment to the federal Constitution and the Volstead Act. 5. Constitutional law storage 258-Intoxicating liquors 17-Intoxicating liquor act does not deprive of liberty and property without due process of law; "consent." Pub. Acts 1917, c. 3, relating to storage of ntoxicating liquors, and providing for punishent of officers of corporations knowingly conenting to a violation, does not violate Const. art. 1, § 17, as depriving corporation officers of liberty and property without due process of law; the word "consent" implying a degree of superiority, at least, the power of preventing. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Consent.] 139-Statute in 6. Intoxicating liquors 7. Constitutional law 42-Person not affected by statute cannot raise question of validity. One prosecuted under Pub. Acts 1917, c. 3, for unlawful storage of intoxicating liquors cannot raise the question that the statute violated Const. art. 1, § 17, in that it provided i Error to Criminal Court, Davidson County; J. D. B. De Bow, Judge. W. J. Baker was convicted for violating the storage act, and assigns error. Affirmed. Jno. W. Hilldrop, of Nashville, for plaintiff in error. Wm. H. Swiggart, Jr., of Nashville, for the State. MCKINNEY, J. The plaintiff in error, hereinafter referred to as the defendant, was convicted in the criminal court of Davidson county for violating the storage act, and from the judgment pronounced has appealed to this court and has assigned numerous errors. [1] As to the facts in the case, we find abundant evidence to sustain the verdict. It appears from the record that three deputy sheriffs obtained a search warrant and went to the place of business of defendant and found a pint bottle filled, and another partly filled, with corn whisky on a shelf under the counter, back of which the defendant was standing. A whisky glass was beside the bottles, and smelled of whisky. The defendant attempted to get hold of one of the bottles before the officer did; that is, they both made a break for the bottle, and, as one or more witnesses state it, "They had a little scuffle." So far as is disclosed by the record the defendant had no other business at that place. [2] Defendant did not testify in his own behalf, and in this court is presumed to be guilty. [3] It is further insisted that the storage act (chapter 3 of the Public Acts of 1917) was superseded and became inoperative by virtue of the Eighteenth Amendment and the Volstead Act (41 Stat. 305). The Supreme Court of the United States, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) on April 10, 1922, delivered an opinion in the case of Tony Vigliotti, Plaintiff in Error, v. Commonwealth of Pennsylvania, 258 U. S. 403, 42 Sup. Ct. 330, 66 L. Ed., from the Supreme Court of Pennsylvania, in which it decided this question adversely to the contention of the plaintiff in error, and such was the holding of this court in State v. Rhodes, 146 Tenn. 398, 242 S. W. 642. [4] The other errors assigned assail the constitutionality of the storage act upon the ground that it is repugnant to section 17 of article 2 of the state Constitution, section 17 of article 1, and section 7 of article 1 of said Constitution. The act in question is as follows: "An act to make it unlawful for any person, firm or corporation, to have or keep in stock, in any warehouse or place of business or other place within the state of Tennessee, any intoxicating liquors, including wine, ale, and beer, intended for present or future sale as a beverage, either at wholesale or retail and whether intended to be sold for delivery at the place of sale or to be shipped or otherwise transported for delivery at another place and to fix the punishment for violation of this act. "Section 1. Be it enacted by the General have been tried and convicted or acquitted. And to this end said officer is authorized and it is made his duty, when making the arrest to search said place of business. And upon the conviction of any person for a violation of this act, the sheriff or other officer shall be directed, as a part of the judgment of the court, to destroy all liquors which may have been so seized. "Sec. 4. Be it further enacted, that it is the purpose to enact into law section 1 and 2 hereof at all events and that if, for any reason, it shall be held that any other parts hereof are the validity of said section 1 and 2. invalid, such holding shall, in no wise, affect "Sec. 5. Be it further enacted, that this act take effect from and after July 1, 1917, the public welfare requiring it." Section 17 of article 2 of the state Constitution is as follows: "Bills may originate in either house; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended." Counsel in his brief does not point out the Assembly of the state of Tennessee, that it particulars in which the act offends the proshall be unlawful for any person, firm or corvision of the Constitution just quoted, but reporation to have or keep in stock, in any wareThe rechouse or place of business or other place with-fers to a brief filed in another case. in the state of Tennessee, any intoxicating liquors, including wine, ale or beer, intended for present or future sale as a beverage, either at wholesale or retail and whether intended to be sold for delivery at the place of sale or to be shipped or otherwise transported for delivery at another place. "Sec. 2. Be it further enacted, that any person who, either for himself or as an officer or agent of any corporation, shall violate the provisions of this act shall be deemed guilty of a misdemeanor and shall, upon conviction, be fined not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) and imprisoned in the county jail or workhouse, for a period of not less than thirty days nor more than six months, and any officer of any corporation consenting to or knowingly permitting the violation of the provisions of this act by any one on behalf of such corporation, shall likewise be guilty of a misdemeanor and shall, upon conviction, be punished in the same manner. A record or subsequent violation of any of the provisions of this act shall be deemed a felony and the punishment therefor, upon conviction, shall be imprisonment in the state penitentiary for not less than one year nor more than five years. ord and briefs in the case referred to were lost and have not been found, but a copy of the brief of the Attorney General in the case referred to has been furnished us, from which we find the contention to be that the act in question is broader than its caption. This contention is without merit. Every provision of the act is related to the caption and germane thereto. Its purpose or object, as expressed in the caption, is to make it unlawful to keep on hand intoxicating liquors for the purpose of sale, and we find nothing in the act foreign to that purpose, or that deals with any other subject. In Bell v. Hart, 143 Tenn. 588, 223 S. W. 996, this court said: "The two-subject clause of the Constitution was intended to prevent a combination in the same act of laws upon wholly different subjects; to avoid the union of incongruous matters in one statute; to secure unity of purpose in legislative enactments." As stated in several of our cases, the object and purpose of the one subject of legis prevent the union, in the same act, of incongruous matters, and of objects having no connection or relation. We, therefore, hold that this contention is without merit. "Sec. 3. Be it further enacted, that when-lation contained in the Constitution was to ever process requiring the arrest of any person for a violation of this act, shall be placed in the hands of any officer, it shall be the duty of such officer upon making the arrest to seize all intoxicating liquors found in the possession of such person or in his place of business or the place of business of any corporation of which he may be an officer or agent and to hold the same until the person arrested shall [5] Article 1, section 17, of the Constitution is as follows: "That all courts shall be open; and every man, for any injury done him in his lands, It is contended that the Legislature transcended its power in providing for the punishment of any officer of any corporation consenting to or knowingly permitting a violation of the provisions of this act by any one on behalf of such corporation. The insistence is that such a provision deprives the corporation officer of his liberty and property without due process of law because it attempts to penalize and make commercial a mere act of omission or passive knowledge, without any active participation or assistance on the part of the person who is not even in any confidential relation to or in control of an actor in the alleged wrong. In our opinion, this language is not susceptible of such a construction. The officer is not to be punished because he does not dissent, but only where he assents, in the sense that he aids or abets in the offense. The word "consent" has been defined as implying a degree of superiority, at least, the power of preventing. "It implies not merely that the person accedes to, but authorizes, an act." Cowen v. Paddock, 62 Hun, 622, 17 N. Y. Supp. 387.1 In 12 Corpus Juris, 519, in defining the word, it is said: "The term implies the power to authorize and to prevent, a degree of superiority which arises from the presence of a combined mental and physical ability to act; it also implies not merely that a person accedes to, but authorizes an act." In Geddes v. Bowden, 19 S. C. 1, the word is given the following definition and meaning, to wit: and one "The word 'consent' originally implies choice, can scarcely be regarded as giving his consent to that which he has no right to object to. 'Consent' implies an agreement to that which, but for the consent, could not exist, and that which the party consenting has a right to forbid." [6] In any criminal prosecution, under this provision of the statute, the rule of construc tion would be to construe the language of the statute strictly against the state and in favor of the accused. In such a case the court would construe the provision to mean something more than a refusal of the officer under indictment to actively dissent in order to render him guilty of a violation of the statute. In order to show the requisite criminal intent on the part of the accused, the state would be held bound to show that he had authority and power to control the 1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in the Hun Reports. [7] A sufficient answer to this contention, however, is the fact that the defendant was not indicted as an officer of a corporation, and is not therefore affected by this provision of the act, and is not in a position to raise this question. When a proper case arises the act will be so construed as not to deprive a defendant of his property or liberty "without due process of law." This provision of the act, in our opinion, simply makes an aider and abetter punishable as a principal, which would be true, under the general law, regardless of the provision complained of. There is no merit in the assignment of error raising this question, and it will be overruled. [8] Section 7 of article 1 of the Constitution is as follows: "That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty, and ought not to be granted." This question has been so elaborately discussed in the recent case of Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639, that a review of the authorities here would be a useless and unnecessary consumption of time. Counsel for the defendant does not point out wherein said act violates this provision of the Constitution. It cannot be contended, under the facts, that the search was unlawful, for the officers were advised that the defendant was engaged in unlawfully selling intoxicating liquors at his place of business, and, upon such information, they procured a search warrant, and went to his place of business and seized the bottles of whisky that the defendant undertook to make way with. In other words, under the facts disclosed by the record, we are of the opinion that, if there was a search in this case it was not an unreasonable one. No question was raised as to the seizure of the not introduced in evidence, and no motion whisky being unlawful. The liquor was was made for its return. of error must therefore be overruled. This assignment [9] The next error assigned questions the validity of section 2 of the act, which makes a second violation of its provisions a felony. The defendant was only indicted for a first offense, and is, therefore, in no position to question this provision of the act. For the reasons set forth above, we find no error in the judgment of the criminal court, and it will be affirmed, with costs. (248 S.W.) Ex parte UNDERWOOD. (No. 7731.) (Court of Criminal Appeals of Texas. April 4, 1923.) Criminal law 1216(6)-Term of imprisonment begins on affirmance and issuance of mandate by appellate court on surrender of accused. Under Code Cr. Proc. 1911, arts. 879 to 8S2, where, after an affirmance of a conviction by an appellate court and issuance of the mandate by that court, the convict still remains at large on bail failing to surrender himself as provided for in his appeal bond, he cannot after arrest and imprisonment claim that his term for imprisonment began on the issuance of mandate from the appellate court and that his arrest and detention were unauthorized because the period of confinement had already elapsed. Appeal from District Court, Eastland County; E. A. Hill, Judge. Habeas corpus proceedings by Walter Underwood. From a judgment of the court remanding the prisoner, he appeals. firmed. Af Bishop & Bishop, of Gorman, and Dabney MORROW, P. J. Relator was convicted of a misdemeanor and his punishment fixed at a fine of $500 and confinement in the county jail for a period of six months. He appealed to this court. The judgment was affirmed (91 Tex. Cr. R. 543, 240 S. W. 549) and the mandate of this court was issued on the 12th day of May and reached the clerk of the court in which the conviction was had on the 15th day of May, 1922. At the time of the | affirmance of the judgment and the receipt of the mandate, appellant was at large on bail. He was not taken into custody. He paid the fine. The position now taken by him is that although he was not incarcerated, his term of imprisonment began upon the issuance of the mandate from this court, and that his recent arrest and detention were unauthorized because more than six months had elapsed since the mandate was issued. See 36 Tex. Cr. R. 384, 37 S. W. 421. The appeal was dismissed. He was again arrested and sought by way of writ of habeas corpus his 'discharge upon the same theory, in substance, as that advanced by the appellant, namely, that his term as a prisoner began when the mandate from this court affirming his case was issued. From the decision of this court in that case, we take the following quotation: "The claim set up by him, that, on account of the habeas corpus proceeding before the county judge and his enlargement on bond, he had constructively paid the fine and costs and served out the term of his imprisonment in the assault and battery case, is worthy of no consideration. It is frivolous. If this were true, should a prisoner escape and get at large, he I could claim that he was serving out his term of imprisonment while at large. Nor is the relator entitled to any discount of his term of imprisonment as adjudicated by said court on account of any time taken up or consumed by him in prosecuting this writ of habeas corpus." In the instant case, appellant was at large on his own volition. He might have remained in jail pending his appeal or he might have surrendered himself upon the affirmance of the judgment and the issuance of the mandate. The statutes on the subject are articles 879 to 882, inclusive, Code of Crim. Proc. The construction in cases where the appellant appeals and then withdraws his appeal and in cases where he asks for a stay of the mandate in order that he might apply to the Supreme Court of the United States are in accord with the view which we have expressed. See Ex parte Carey (Tex. Cr. App.) 64 S. W. 241; State ex rel. Looney v. Hamblen et al., 74 Tex. Cr. R. 526, 169 S. W. 678. The statutes are intended to furnish a procedure by which one convicted of a misdemeanor shall be required to comply with the judgment, and to allow one who is in custody when his case is affirmed to have credit for the time that he may thereafter spend in jail on account of the particular prosecution. Ex parte Spiller, 63 Tex. Cr. R. 93, 138 S. W. 1013. The appeal bond which the appellant executed required that he appear before the court in which the judgment was rendered and abide by the judgment of the Court of Criminal Appeals in this case. It was by reason of this bond that he was allowed to remain at large pending his appeal, and if he had obeyed its terms, doubtless the sheriff would have put him in jail, but having failed to do so, we find no warrant in the law for the conclusion that he has satisfied the judgment against him. The principles which controlled the decision in Ex parte Branch, 37 Tex. Cr. R. 318, 39 S. W. 932, would seem applicable here. Branch was convicted of an aggravated assault. He appealed to this court and the case was affirmed. See 35 Tex. Cr. R. 304, 33 S. W. 356. After the affirmance, he was arrested on a capias pro fine. He sued out a writ of habeas corpus. He was remanded into custody and again appealed to this court. The judgment is therefore affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes BOLTON V. MISSOURI PAC. R. CO. (Supreme Court of Arkansas. March 12, 1. Railroads 52, New, vol. 6A Key-No. Series-Suits prosecuted against company for cause of action vesting before Director General took charge. Under the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 31154a-3115p), suits might be brought and prosecuted against a railroad company for a cause of action which had become vested before the Director General of Railroads took charge. 2. Railroads 265-Purchaser under receivership not liable for injuries. One who had not recovered judgment against a railroad company or the receiver thereof operating the railroad at the time he received injury cannot recover from a railroad which subsequently obtained possession by pur chase under a decree of a chancery court. Appeal from Circuit Court, White County; J. M. Jackson, Judge. Action by Clifton Bolton, a minor, by his next friend, against the Missouri Pacific Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed. On the 20th of June, 1919, Clifton Bolton, a minor, by his next friend, sued Walker D. Hines, Director General of Railroads, for damages for personal injuries received by him on the 6th day of July, 1916. His complaint alleges that he was injured while returning from work by the negligence of one of the brakemen of the railroad company shoving him off of one of its trains while it was running at a high rate of speed. This court held that the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St.. Ann. Supp. 1919, §§ 31154a-3115p) gave the exclusive management of railroads to the Director General, but that it never contemplated that the government would be liable for causes of action against railroads which had become vested before the Director General took charge of them. Hence it is held that the plaintiff could not maintain his action against the Director General for the negligence of the railroad company which occurred before the Director General took charge of the railroads under the act of Congress. Bolton v. Hines, 143 Ark. 601, 221 S. W. 459. the alleged injury the railroad was being operated by the St. Louis, Iron Mountain & Southern Railway Company, and that subsequently the railroad was sold under the decree of the federal court and the Missouri Pacific Railroad Company became the purchaser at the sale. It was insisted that this court would take judicial notice of these proceedings. This court held that it could not take notice of the records of other courts and held further that an adjudication in favor of the Director General of Railroads was not an adjudication of the right of the plaintiff to sue the railroad itself for an injury which occurred before the government assumed control of the railroad. Bolton v. Mo. Pac. Rd. Co., 148 Ark. 319, 229 S. W. 1025. Upon a remand of the case the Missouri Pacific Railroad Company filed a motion to require the plaintiff to make his complaint to state in his complaint who was operating more definite and certain. He was asked the railroad at the time his alleged injury was received. The plaintiff filed an amended complaint in which he alleged that the St. Louis, Iron Mountain & Southern Railway Company was operating the railroad at the time his injury was received and that later B. F. Bush, receiver, operated the railroad at the time it was purchased by the Missouri Pacific Railroad Company. The defendant, Missouri Pacific Railroad Company, demurred to the complaint on the ground that the plaintiff could not maintain a cause of action against it for injuries received while the railroad was being operated by the St. Louis, Iron Mountain & Southern Railway Company, or by B. F. Bush, as receiver of said company. The court sustained a demurrer to the amended complaint, and the plaintiff elected to stand upon his amended complaint. From a judgment in favor of the defendant the plaintiff has duly prosecuted an appeal to this court. Oscar H. Winn, of Little Rock, for appellant. Pryor & Miles, of Ft. Smith, and Ponder & Gibson, of Walnut Ridge, for appellee. HART, J. (after stating the facts as above). [1] Under the Federal Control Act, the rights and remedies against common carriers enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies interfered with federal operation, were preserved to the general public. Under the act suits might be brought and prosecuted against the railroad company for a cause of action which had be come vested before the Director of Railroads took charge of the common carriers under the act of Congress. Mo. Pac. R. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087. On May 17, 1920, the plaintiff sued the Missouri Pacific Railroad Company for damages for the same injury. The former suit against the Director General of Railroads was pleaded by the railroad company as a bar to the action. The plea was sustained, and upon appeal it was sought to affirm the judgment on the ground that on the date of According to the allegations of the comFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |