State v. Smith , 72 Ind. 549 ( 1880 )

Niblack, C. J.

— This was a prosecution against Andrew •J. Smith for embezzlement. The indictment was in five counts, each charging in a different way, that the defendant •had, on the 30th day of October, 1878, while in the employment of one Bradley Bartholomew embezzled the sum of seventy-two dollars and twenty-seven cents, the property of ■the said Bartholomew.

The indictment was returned on the 11th day of October, 1879.

At the January term, 1880, of the court below, the defendant moved the court to quash the indictment upon the ground that the alleged offence was committed while the act of December 21st, 1865, defining and punishing embezzlement was in force, and that the right to afterward indict and punish persons guilty of offences under that act was not saved by the act of March 21st, 1879, which was substituted for that of 1865. 2 R. S. 1876, p. 449 ; Acts 1879, 126. The motion to quash the indictment was sustained, and the defendant discharged.

The State has appealed, and assigned error upon the decision of the court quashing the indictment,

The 3d section of the act of 1879, amendatory of the law concerning embezzlement, referred to as above, is as follows : “All laws upon the subject of embezzlement, now in force, are hereby repealed : Provided, That all prosecutions now pending under the law as it now is, and all offences already committed, may be prosecuted under the law now in force.”

The appellee maintains that the obvious meaning of the proviso to the section, set out as above, is, that all offences committed under the acts of 1865 may be punished under the act of 1879, and that, Avith that construction, the proviso is expost facto in its character, and consequently inoperative and Aroid. Counsel make the precise question at issue between them turn upon the construction to be given to the Avords, “Under the laAV noAV in force,” Avith AA'hich the proviso concludes, it being contended on behalf of the appellant that those Avords refer to the act of 1865, and, on the part of the appellee, that they refer to the act of 1879.

The construction contended for by counsel for the appellant appears to us to be the true one. The first clause of the section containing the proviso, as has been seen, enacts that “All laws upon the subject of embezzlement, now in force, are hereby repealed.” By this reference to certain laAvs “noAV (then) in force,” the Legislature evidently intended to refer, and did refer, to the act of 1865. Any other construction Avould leave that act still in force, and alloAV the appellee to be prosecuted under it upon the theory that it has not been repealed. The reference to the “laAV noAV (then) in.force,” in the proviso, must be construed in connection Avith those similar Avords in the repealing clause, and be held also to apply to the act of 1865.

When the act of 1879 Avas before the Legislature, the act of 1865 constituted the Iuav then in force on the subject of embezzlement,’ and must of necessity have been the act referred to both in .the repealing clause, and in the proviso,, as the then existing laAV on that subject.

We are therefore of the opinion that the authority to prosecute offences like the one described in the indictment in this case was saved by the act of 1879, and that the court erred in sustaining the motion to quash the indictment.

The judgment is reversed, at the costs .of the appellee, and the cause remanded for further proceedings.