State v. . Massey , 103 N.C. 356 ( 1889 )

Avery, J.

(after stating the facts). The indictment is drawn under section 985, subsection 6, of The Code, which provides, that “whoever shall unlawfully and .maliciously set fire to any church, &c, mill, barn, &c., whether the same or any of them, respectively, shall be in the possession of the offender or of any other person or persons, body politic or corporation, shall be guilty of felony and imprisoned in the penitentiary for not less than five nor more than forty years.” The act of 1885 was ratified and took effect on the sixteenth day of February, 1885, and provided that the said section — The Code, 985 (6) — shall be amended by striking out “ unlawfully and wilfully,” when it appears in the section, and inserting in lieu the words “ wantonly and wilfully,” and by striking out the words “ with intent thereby to injure or defraud any person or persons, body politic or corporation.” Chapter 66, Laws of 1885.

There are several established rules of construction that will aid us in determining whether the last statute cited leaves the section of The Code, under which the indictment was drawn, still in force as to offences falling under its inhibition and committed prior to the sixteenth day of February, 1885.

1. If a later statute is irreconcilably inconsistent in its terms with one previously enacted, it operates to repeal the older statute, so far as such repugnancy extends, by implication, but when any fair construction will reconcile a seeming repugnancy, it must be adopted. State v. Custer, 65 N. C., 339.

2. When a statute creating a criminal offence is expressly repealed, or any portion of it, that is essential to sustain an indictment drawn under its provisions, is stricken out by a law subsequently enacted, the former will be held inoperative even as to offences committed before the passage of the later act, unless a contrary intent on the part of the lawmakers appear from an express saving clause or by necessary implication from the language in the repealing statute. Lindsey v. State, Southern Reporter, vol. 5, No. 7, p. 99; State v. Long, 78 N. C., 571 ; State v. Wise, 66 N. C., 120. “The act punished must’be criminal when judgment is demanded, and authority to render it must still reside in the Court.” State v. Williams, 97 N. C., 455. When the Legislature re-enacts, in terms or in substance, an act then in force, but declares the law previously passed repealed, it is considered a reaffirmance of the old law. State v. Sutton, 100 N. C., 474; Bishop on Statutory Crimes, sec. 181. [n such cases the legislative intent is implied from the very words of the repealing act. Our case cannot be brought within this principle, for there is nothing in the repealing act to indicate an intent to leave the old law unrepealed or to reaffirm it.

We cannot concur with counsel, that § 3766 of The Code should be so construed as to subserve the purpose of a saving clause to the act of 1.885. That section is as follows: “ When a part of a statute is amended it is not to be considered as having been repealed and re-enacted in the amended form; but the portio'n s' which are not altered are considered as having been the law since their enactment, and the new provisions as having been enacted at the time of their amendment.” If the indictment could be sustained and judgment, pronounced under § 985 (6) of The Code, after striking out the words “ unlawfully- and maliciously,” wherever they occur in said section, and also the words “ with intent to-defraud,” &c., the defendant might be convicted and punished of this charge. But in order to sustain that view the indictment must be good under that section, without the words stricken out on the sixteenth day of February, 1885. The indictment, however, is plainly framed upon the theory that The Code, § 985 (6), was still operative in the year eighteen hundred and eighty-eight as to offences committed before the ratification of the act of 1885.

It is contended, however, that the original section of The •Code and the act of 1885 are not totally repugnant to each other, but may be construed together, leaving the former in force up to the moment of amendment, and the amended act operative since. It is alway presumed that the Legislature expresses its intention in clear and explicit terms. Potter’s Dwarris, p. 219. There is nothing in the amendatory law from which we can even infer the words were to be considered as stricken out as to future offences only. We find there the simple mandate of the law-making department, that the subsection “ be amended by striking out,” &c. It was so amended on its ratification, when it took effect.

Where an amendatory law repeals a proviso to a section of a former act, or a whole section of a former act, but the section without the proviso or the section not affected will support an indictment, the law referred to (sec. 3766) will apply. But it is enough to show that it has no application in this case. If this Court should attempt to supply the omissions of the Legislature, and resort to strained constructions of criminal statutes in order to prevent the escape of men accused of crimes and assumed to be guilty, it might prove more dangerous to usurp the powers of a co-ordinate branch of the government than to allow some acknowledged criminals to go unpunished.

There is a marked distinction between the case at bar and State v. Putney, Phil. Law; 543, cited by the Attorney General. The defendant Putney was convicted at Fall Term, 1867, of the Superior Court of Wake County, under an indictment found in December, 1866, of the larceny of a mule. On the 25th of February, 1867, the General Assembly, after reciting “ that the crime of stealing horses and mules hath of late, notwithstanding the punishment provided by law, become much more common than formerly,” &c., enacted “ that every person who shall steal any horse, mare, gelding or mule, and shall be thereof convicted, according to due course of law, shall suffer death.” Before that time larceny was punishable with whipping, or with fine or imprisonment. The Court held that the old and new law would be construed so as to give effect to both by interpreting “ shall,” according to its natural import, as referring exclusively to offences hereafter committed, and the preamble certainly indicated that intent. No law, or'part of a law, was expressly, or by necessary implication, repealed; and the old and new law were both left operative.' Potter’s Dwarris, 133.

When, by the Constitution of 1868, corporal punishment was forbidden, the question was raised (in State v. Kent, 65 N. C., 311), whether one who was convicted of larceny, committed before the law was changed, could be punished by imprisonment in the State prison. The Court held that the law altering the punishment was not an ex post facto law, because it did not make punishable an act already committed and not previously criminal, and it did not aggravate 'the punishment of the crime of larceny, previously punishable with whipping. We think, therefore, the case is easily distinguishable from the cases of State v. Sutton, State v. Kent, and State v. Putney, supra, cited by the Attorney General.

In State v. Rogers, 94 N. C., 860, Mr. Justice Merrimon, for this Court, says, in effect, that the act of 1885 (cb. 66) repeals the words of The Code, § 985 (6), that are mentioned in the act.

We think that the law under which the indictment was drawn did not continue in force in its original form up to the passage of the amendatory act, and we, therefore, concur with the Judge below in his ruling

It is not the province of this Court to pass upon the innocence or guilt of the accused. If he was not guilty, still he had the right, and it was the duty of his counsel, to have the case disposed of in this summary way. If he was guilty, under § 985 (6) of The Code, we must presume that the Legislature, in omitting to add a saving clause to the act of 1885, intended to discharge all who had been previously guilty of violations of the section amended.

The judgment of the Court below is affirmed.

No error. Affirmed.