214 La. 472

#### STATE v. EVANS et al.

No. 38630.

Supreme Court of Louisiana.

Feb. 16, 1948.

On Rehearing Nov. 8, 1948.

Further Rehearing Denied Dec. 13, 1948.

*142Fred S. LeBlanc, Afty. Gen.; M. E. Culligan, Asst. Atty. Gen., J. Vernon Sims, Dist. Atty., of Oak Grove, Harry N. An-ders, Asst. Dist. Atty., of Winnsboro, and Warren Hunt and John C. Morris, Jr., both of Rayville, for plaintiff-appellee.

H. C. Walker, Jr., of Shreveport, W. D. Cotton,-of Rayville, W. H. Thompson^ of Monroe, and George Conger, of Shreveport, for defendants-appellants.

PONDER, Justice.

The defendants were convicted under an indictment charging them with unlawfully prospecting for oil, gas and other minerals by means of a mechanical device or otherwise on the private lands and property of George B. Franklin, without the consent of the owner, in violation of Act 212 of 1934. Each of the defendants were sentenced to pay a fine of $1,000 and cost and, in default of payment of the fine, that the defendants, except the Arkansas Fuel Oil Company, serve twelve months in the parish jail. The defendants have appealed from the conviction and sentence.

The defendants seek to set aside the conviction and sentence on various grounds. The grounds relied on were properly raised in the lower court by bills of exceptions and motions. In order to avoid repetition, the issues will be discussed without referring to the manner in which they were raised because there is no dispute in that respect.

It is contended that Act 212 of 1934 is violative of Section 16 of Article 3 of the Constitution in that its title is not indicative of its object and that it embraces more than one object.

The title of the act reads as follows: “Making it a misdemeanor to prospect for oil, gas or other minerals, or for other purposes, on the public lands and highways of the State without its consent, or upon private property without the consent of the owner, and providing a penalty for the violation of this Act.”

The only difference in the title and the body of the act is that it is provided in the body of the act that it shall be unlawful to prospect by means of torsion balance, seismograph explosions, any mechanical device, or otherwise, for oil, gas or other minerals, and provided that the consent of the State may be given by certain designated officials. The provisions in the act with reference to the means of prospecting are germane to the object expressed in the title. The title of an act does not -have to be a synopsis or index of its contents. It is sufficient if the title indicates the general purpose of the law. State v. Fuller, 209 La. 523, 25 So.2d 83.

The ac't has only one object. Its object is to prevent prospecting on lands without the -consent of the owner.

The defendants contend that the act is unconstitutional because it does not fix any standard of guilt and does not define the phrases “to prospect” and “mechanical devices”. They take the position that under the act it is left to the discretion of the judges, district attorneys and grand jurors to determine - what constitutes the crime. They claim that this violates Section 10 of Article 1, Section 1 of Article 3 arid Sections 1 and 2 of. Article 2 of the Constitution.

We have on numerous occasions pointed out that a statute should be construed according to the.fair import of its words, taken in their usual sense in connection with the context. This method of construction was recently referred to in the case of State v. Truby et al., 211 La. 178, 29 So.2d 758.

The word “prospect” has a well , defined and a common accepted meaning. If we were to define that word by pointing out that it means “to explore, examine, search for,, or make tests”, the words defining it would not have a more common or accepted meaning. The same may be said of “mechanical devices”. It would be folly for the Legislature to define words in an act that have a common accepted meaning. Prospecting for oil has been extensive in this State for a number of years and it is .'generally known that mechanical devices are used for that purpose. The records *143of this. Court, as well as the records of many other courts of this State, reflect that mechanical devices arp generally used in making geological and geophysical surveys in the search of, or in prospecting for, oil or other minerals. The ordinary man. has no difficulty in understanding what prospecting for oil with mechanical devices means, especially when these phrases are used in connection with the oil industry. It is not necessary to state any and every mechanical device that might be used in the discovery of minerals in the statute any more so than words used in denouncing other offenses, as “shop” under the old' breaking and entering statute, “confidence game” under'that statute, or “the various means by which death may be caused” in the crime of murder. The offense of prospecting for oil, as denounced under this statute, is confined to mechanical operations, thus restricting its orbit and apprais-. ing the public of its nature and the means through which it may be committed. This, in our opinion, firmly establishes what constitutes the offense and nothing is left to the discretion of the judiciary to determine.

 The defendants contend that the indictment does not charge an offense known to or denounced by any law of this State. They say that the indictment contains nothing but conclusions of law and that no facts are alleged as to any acts of the defendants showing a violation of the law. They take the position that the indictment violates Section 10 of Article 1 of the Constitution in that they were not informed of the nature and cause of the accusation. The defendants concede that an indictment, following the language of a statute or alleging an offense in words equivalent to those used in the statute or of the same import, is sufficient if it fully informs the accused of the offense charged and the court is enabled to determine on what statute the charge is founded. There is no dispute that the general rule does not apply when the words of a statute do not in themselves fully set forth all the elements and ingredients necessary to* constitute the offense intended to be punished. They claim that the indictment does not allege the facts and circumstances upon which the offense is based and, under the exception to the general rule, it is not a valid indictment. Their counsel have cited many authorities which they claim support their position. We have examined these authorities and find that none are in point. They involve statutes where the crime is denounced in general language which' requires the allegation of the essential facts. The indictment sets forth all the elements and ingredients necessary to constitute the offense and fully apprises the defendants of the nature and cause of the accusation. What could he more clear and free from uncertainty and ambiguity than “did unlawfully prospect for oil with a mechanical device” on the lands of a named person withour his consent?

The defendants contend that Act 212 of 1934 has been superseded or repealed by Act 77 of 1940. Their contention is based on the ground that the subsequent act impliedly repeals the former act.

Act 212 of 1934 is designed to prevent prospecting on public and private property without the owner's consent. Act 77 of 1940 has for its purpose the protection and preservation of minerals under lands owned by the State. It gives the Conservation Commissioner authority to grant permits for the conduction of geophysical and geological surveys, subject to the rules and regulations of the state mineral board. All of its provisions deal strictly with public lands and have no application to private owned lands. It is not necessary for the purpose of this decision for us to determine whether the subsequent act impliedly repeals the prior act insofar as public lands are concerned, for the reason that this cáse presents no such issue. However, insofar as private lands are concerned, there are no provisions in the subsequent act that are irreconcilable with the prior act. There is nothing in the subsequent act to indicate any intention on the part of the Legislature to repeal the prior act in respect to private lands. Repeals by implications are not favored and they must be based on a legislative intent to supersede the prior law or the provisions of the two acts must be irreconcilable. These rules of law are so well imbedded in the jurisprudence of this State that it is unnecessary to cite authorities supporting them.

*144The defendants contend that the State produced no evidence whatever to the effect that the defendants prospected on the private lands of George B. Franklin. They concede that this Court cannot review the facts affecting their innocence or guilt and reverse the findings of the lower court upon insufficiency of evidence of guilt but claim that there is no evidence on an essential element of the crime charged, viz.: showing they prospected on the private lands of George B. Franklin. The evidence shows that George B. Franklin owned a large tract of land traversed by many roads. Most of the roads running through this property were parish roads that had never been formally dedicated, but rights of way or servitudes were obtained by prescription. The defendants made tests on these roads with a gravity meter machine and the readings from this machine reflected information obtained not only from under the road beds but from the other lands of Franklin. It is not necessary for the purpose of this decision to determine whether tests made of the Franklin land from a point where a machine was located on another’s land is a violation of the act, because Franklin owned the road bed upon which the machine rested when the tests were made. The basis of the defendants’ contention is that public highways are not and cannot be private lands within the meaning of Act 212 of 1934 and Act 77 of 1940, even though an individual owns the soil and the mineral rights beneath the highways or rights of way. In other words, that prospecting on these road beds is not prospecting on private property..

It is well recognized that the right to prospect by geophysical and geological surveys is a valuable right. This right belongs to the owner of the soil if it has not been disposed of. In the case of Goree v. Midstates Oil Corporation et al., 205 La. 988, 18 So.2d 591, it was held that a' right of way obtained by prescription was nothing more than a servitude and did not divest the owner of the fee title to the road bed. The decision was based on the articles of the Civil Code dealing with serv-itudes. From a mere reading of the opinion in that case it is readily seen that the public’s right in the property is. merely one of passage or a limited right of use. When the Legislature refers to roads and rights of way, in the acts relied on, as public property, it contemplated those where the State owned the fee title. This is clearly demonstrated in Act 77 of 1940 in Section 1(a) where public lands are defined as lands belonging to the State or the -title to which is in the public, including rights of way, road beds, etc. The State could not lease these road beds or dispose of them. Franklin, the owner of the soil, alone has this right. It is true that Franklin could not disturb the usé of the rights of way, but the road beds could be developed for oil by directional drilling. ' If we were to construe the statutes, as contended for by the defendants, it would render them unconstitutional.

The defendants contend that the conviction should be set aside insofar as the corporation is concerned.

The corporation was charged in the in.dictment as being represented by H. C. Walker, Jr., as its executive officer and in charge of its operations. Walker was also charged in the indictment individually. The district attorney dismissed the charge insofar as Walker was concerned prior to the trial. On the trial the evidence showed that the other defendants did the alleged prospecting for the corporation. No objection was urged to this evidence. After all the evidence had been adduced, counsel for the corporation urged the following complaint by way of special charge, viz.: that-, the corporation should be acquitted because the evidence failed to show that Walker was the executive officer in charge of the operations and failed to show that the corporation prospected on the lands, acting through Walker. The defendants have cited no authorities to support tlieir con- • tention and we know of no reason why the conviction should be set aside under the circumstances, because the charge was directed at the corporation and it was proven that the other defendants were acting for the corporation when they prospected on-the lands. The answer to defendants’ request for a bill of particulars states that' the other defendants made the survey for' the corporation. No objection was made to the evidence that the other defendants *145did the prospecting fbr the corporation. Taking these facts into consideration with the further fact that the charge had been dismissed in respect to Walker before the trial began, there could be no good reason to set the conviction of the corporation aside.

For the reasons assigned, the convictions and sentences are affirmed at appellants’ cost.

O’NIELL, C. J., absent.

HAMITER, J., dissents and assigns written reasons.

HAMITER, Justice

(dissenting).

In the indictment, as presented by the Grand Jury, it was originally charged that the defendants herein, on May 1, 1946, in the Parish of Richland, “did then and there unlawfully prospect by means of mechanical devices and otherwise for oil, gas and other minerals on the private lands and property of one George B. Franklin without the consent of him, the said George B. Franklin, the owner of said lands and property, and did then and there unlawfully prospect by means of mechanical devices and otherwise for oil, gas and other minerals on public highways regularly maintained by the Louisiana Highway Commission and on public highways not maintained by the Louisiana Highway Commission which run through, over, across and upon the lands and property of the said George B. Franklin, without proper permit, consent and authority so to do, contrary to and in violation of the provisions of Act No. 212 of the Legislature of Louisiana of 1934, and' all acts amendatory thereto.” Subsequently this charge was amended by the District Attorney, pursuant to an order of the court, so as to delete therefrom all that part which made reference to prospecting on public highways. And, following the amendment, defendants were prosecuted and tried for the single offense of having prospected on the private lands and property of George B. Franklin without his consent.

As stated in the majority opinion the evidence adduced on the trial disclosed that the tests conducted by the defendants were on parish roads that traverse the lands owned by Mr. Franklin. Although such roads have never been formally dedicated, and the soil. and mineral rights beneath them belong to the named owner, nevertheless they are servitudes of way — public roads or highways — by virtue of prescription. From which there arises the question : Did the testing conducted by defendants on those parish or public roads constitute a prospecting on the private lands of George B. Franklin, as charged in the amended indictment, within the meaning and contemplation of Act 212 of 1934? My opinion is that it did not.

Act 212 of 1934, in the disjunctive, sets forth three separate and distinct ways by which the prospecting for oil and gas with a mechanical device results in the commission of a misdemeanor. These are when the prospecting is done, to quote from such statute, “ * * * on the public lands of the State without the consent of the Register of the State Land Office, or on the public highways of the State without the consent of the Louisiana Highway Commission, or on private property, without the-consent of the owner; * * Continuing, the statute recites: “Provided, that on such public highways as are not regularly maintained by the Louisiana Highway Commission, it shall be sufficient to procure ,the consent of the Police Jury of the Parish in which such public highway is located.”

These provisions unquestionably distin-' guish between prospecting on “private lands” and prospecting on “public' highways.” This being true, and considering that the statute in question ;s penal in nature and must be strictly construed, it-cannot be correctly said that when the defendants were conducting their operations on public roads — public highways maintained by the parish — they were committing the offense of prospecting on the private lands of George B. Franklin within, the intendment of Act 212 of 1934.

I respectfully dissent.

On Rehearing.

MOISE, Justice.

The ' defendants are appealing from a-, judgment of conviction for the alleged. *146violation of Act 212 of 1934. The issues before the Court, on rehearing’, are (1) the interpretation of this statute; and *(2)*the admissibility as distinguished from the sufficiency of the evidence.

An analysis of the Act shows that it denounces three offenses:

1. To prospect by means of mechanical devices for oil and minerals on public lands without the consent of the State Land Office;

2. To prospect for oil with mechanical devices on public highways without the consent of the State Highway Department; and

3. To prospect for oil and minerals with mechanical devices on private property without the consent of the owner.

The statute also contains a conditional clause: “Provided, that on such public highways as are not regularly maintained by the Louisiana Highway Commission, it shall be sufficient to procure the consent of the Police Jury of the Parish in which such public highway is located.”

' The origin'al indictment discloses that the defendants were charged with “prospecting with mechanical devices on the private lands and property of George B. Franklin, without his consent, and with prospecting with mechanical devices on public highways maintained by the Staté and on public highways not maintained by the State which run through, over, across and upon the lands of said Franklin, without permit * * This indictment was subsequently amended, pursuant to an order of court, and .there was deleted therefrom all that part of the charge which referred to prospecting on the - public highways. There remained only the charge that the defendants had prospected on the private lands and property of George B. Franklin, without his consent. It was for this offense they were tried and convicted. Proper and timely objections were made to all of the rulings of the trial court and formal bills of exception were reserved by the defendants.

The defendants herein had a permit from the Highway Department to prospect for oil and gas with mechanical devices on the public highways. The proof offered on the trial, as was noted in both the original and the dissenting opinions, shows that the tests conducted by the defendants were on parish roads that traversed the lands owned by Mr. Franklin. Although these roads were not formally dedicated, they are servitudes of way — public roads or highways — by virtue of prescription.

The transcript reveals the fact that during the trial,’ the objections made by the defendants were both general and specific. It is of particular note that these defendants did strenuously object and did reserve bills of exception, which were properly confected and signed, to any evidence that tended to enlarge the issue over and beyond that set out in the amended indictment. Nevertheless, over these objections, the trial court did allow the State to introduce evidence of operations which proved an allegation previously deleted from the indictment.

There is considerable difference of law and fact in the making of a survey and the actual use of a gravity meter machine on the surveyed location. The statute itself makes the distinction. To. be a completed crime in the instant case (a) the prospecting for oil or minerals must be made, (b) a mechanical device must be used, (c) on private property, without the consent of the owner. All three of these ingredients must be proved beyond a reasonable doubt.

The record before us clearly shows that the defendants were convicted on proof offered for prospecting for oil on a public highway, without the consent of the person who owned the soil and mineral rights under the right of way. This is not the charge of the indictment. Therefore, this variance between the allegations of the indictment and the' proof is fatal. The manifest error is the admitted evidence. /

The statute — Act 212 of 1934— is penal and must be strictly construed. The Legislature prescribes the definition of a crime; the court cannot supply one. The Legislature, in this act fixed the consent of the Highway Department as excluding a conviction for prospecting on a highway maintained by the State, and the consent of the Police Jury of the parish *147as being sufficient to exclude a conviction for prospecting on public highways maintained by the police jury. The act prescribes one rule for private property and another for public highways. Therefore, if the court were to sustain the convictions of -the defendants herein, the effect would be that of writing into this statute that cóns'ent be obtained from another class— the owner of the bed of the public highway. The granting of a privilege is one thing— defining a crime is another. It is clear that the Legislature in adopting this statute could not have meant to include within the term private property any public highway of the State, even though a private citizen might own the soil and mineral rights •thereunder. The presumption in a criminal case is pne of innocence. A rule of statutory construction is affirmatio unius ex-clusio est alterius — the affirmance of one thing is the exclusicp of the other.

It is therefore ordered, adjudged, and decreed that the verdicts and the sentences appealed from are annulled and set aside, and this case is ordered remanded to the lower court to be proceeded with according to law. The State’s right to apply for a rehearing is reserved.

HAWTHORNE, Justice (dissenting), written reasons.

PONDER, *J.,*dissents.

HAWTHORNE, Justice,

(dissenting).

As I understand the majority opinion, the verdict and sentence of the lower court were reversed because of the “variance between the allegations of the indictment and the proof * * The majority opinion stated that the evidence clearly shows that the defendants were convicted on proof offered for prospecting for oil on a public highway without the consent of the person who owned the soil and the mineral rights under the right of way, and that it was manifest error to admit this evidence.

If the majority of this court means by the above that the evidence was insufficient to prove the charge, this court is without jurisdiction, and has no right to review the evidence because this presents only a question of fact, and this court has jurisdiction only of questions of law in criminal cases. La.Const. of 1921, art. 7, Sec. 10; State v. Green, 111 La. 89, 35 So. 396; State v. Nolan, 129 La. 935, 57 So. 274; State v. Davis, 158 La. 21, 103 So. 391; State v. Kilshaw, 158 La. 203, 103 So. 740; State v. Bonner, 193 La. 387, 190 So. 621. If the majority opinion means that there was no evidence in this case on some essential element of the crime charged, in my opinion the record shows that there is some evidence, no matter how little, that these defendants prospected for oil and gas by means of a mechanical device, a gravity meter machine, on the private property of George B. Franklin without his consent. It is only where there -is no evidence at all upon some essential element of the crime charged that the Supreme Court may set aside a verdict. State v. Hollingsworth, 137 La. 478, 68 So. 834; State v. Holder, 159 La. 82, 105 So. 232; State v. McDonell, 208 La. 602, 23 So.2d 230.

The evidence shows that most of the markers,' indicating reading stations, were placed by the defendants during the survey on the right of way, but that some of them were on the private property of George B. Franklin; that the gravity meter crew worked all of the stations, except two or three, and those worked included stations indicated by markers on the private prop--erty of George B. Franklin; that the purpose of the survey was to survey the property of George B. Franklin. The evidence also shows that the gravity meter crew-never took their truck off the highway or rights of way through George B. Franklin’s ■property. In my opinion all of this evi-. dence was admissible to prove the crime-charged. As to the truth or falsity of any-of this evidence, or its sufficiency, we are-not vested with authority to decide, but in my opinion it contains some evidence-that the prospecting operations were on the-private -property of George B. Franklin..

The essential elements of the crime-charged agains-t these defendants, as I read the statute, are, first, to prospect for oil or gas or other minerals; second, by means of any mechanical device, and, third, on private property without the consent of the owner. No issue is made of -the fact-*148that the defendants were prospecting for oil and gas by means of a mechanical device and without the consent of George B. Franklin; therefore, the sole issue in regard to the proof of the elements of the crime is whether this prospecting was done on the private, property of George B. Franklin.

I submit that fo,r there to be some evidence’ on this element of the crime it was not absolutely necessary for the State to show that the mechanical device itself was physically on the private property. The showing that -the defendants actually established reading stations On the private property while prospecting, as indicated by the markers and streamers thereon, that they worked the survey with a gravity meter machine, and that the purpose of the survey was to survey the property of George B. Franklin, is, in my opinion, some evidence of this element of the crime. This court, therefore, .is without jurisdiction to reverse the verdict and sentence upon a consideration of the evidence in this case.

I respectfully dissent.