State v. Putney, 61 N.C. 543, 1 Phil. 543 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 543, 1 Phil. 543

THE STATE v. RICHARD PUTNEY.

The Act of 1866 — ’T, c. 82 (25th February 1867) which punishes the stealing of mules &c.. with death, did not repeal the law prohibiting that crime previously, except as to offences thereafter committed; therefore where one was convicted at Fall Term 1867 of stealing a mule, under an indictment found in December 1866, — held that the question of punishment was not affected by the Act first mentioned.

Larceny, tried at Fall Term 1867 of the Superior Court of Wake, before Fowle J.

The indictment had been found at a Court of Ojer and Terminer held in December, 1866. The defendant having been convicted at Fall Term 1867, moved in arrest of judgment, and the motion having been granted, the Attorney General appealed.

Attorney General for the State.

There is no express repealing clause, and the court will not imply a repeal from what appears upon the face of the Act of 1866-7. Pegram’s Case, 1 Leigh, 623; Myatt’s Case, 6 Rand. 694; 2 Strob. 17; Queen v. Pugh and al, 1 Mod. 107; S. v. Aiken, 39 N. H. 179; S. v. Taylor, 2 McCord. 491; Sturgeon v. State, 1 Blackf. 39, note; Sedge. Stat. Const, 125.

Haytoood & Badger, contra.

1. The Stat., 1866-7 being affirmative, repeals so much of the old law as relates to the punishment, — that being inconsistent with its own provisions. 1 Bish. Cr. L. ss. 197, 208 to 205; S. v. Upchurch, 9 Ire. 454; Nicholls v. Squire, 5 Pick. 168; Comm. v. Kimball, 21 Pick, 373; Sullivan -v. People, 15 111. 133; Rex v. Cator, 4 Bur. 2026.

2. In cases like this the intent of the Legislature that former offenses may be prosecuted under the old law, must appear affirmatively on the face of the new statute upon a strict construction of it. Bish. s. 217; Pegram’s Case 1 Leigh 569; Allen v. Commonwealth, 2 Leigh, 727; Pittman v. Commonwealth, 2 Rob. Va. 800; Anon. 1 "Wash. C. C. 84 and 89.

Reads, J.

At the time when the offence was committed, larceny was punishable with whipping, imprisonment and fine; one or all, — State v. Kearzey, ante 481. Our Statute of 1866 ’7, chap. 82, (February 25, 1867,) punishes larceny of a mule, &c., with death. And now it is insisted that this defendant cannot be punished at all; not under the statute of 1866-’7, because the offence was committed prior thereto; and not under the old law, because it is repealed by the new.

It is true that the defendant cannot be punished under a law wffiich was not in existence at the time when the offence was committed, because that law would be ex post facto, unless where it¿ lessens the punishment. It is equally true that, where a new law expressly or impliedly repeals the old law, there can be no conviction under the old law. But the Act of 1866-'7 has no application to the case before us, because it does not repeal the old law, but is only prospective in its character and is to be read thus: If any person shall hereafter steal a mule, &c., he shall suffer death. All larcenies committed before that Act are to be tried and punished without reference thereto.

The motion in arrest of judgment ought not to have been allowed.

There is error. Let this be certified, &c.

Per Curiam. Ordered accordingly.