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a defendant charged with an assault is no longer, as a rule, held to be entitled to an acquittal because the assault is part of a felony ; while by statute, if not by judicial construction, there are now no jurisdictions in which a defendant, on an indictment for felony, cannot be acquitted of the felony, and convicted of the constituent misdemeanor, if duly pleaded. If, however, there is no constituent misdemeanor duly pleaded, then the defendant, if acquitted of the felony, cannot be convicted of a misdemeanor proved on the trial, but not averred in the indictment. $ 28. The proposition that penal statutes are to be strictly con

strued is to be applied not to the merely remedial, but utes to be only to the restrictive and punitive clauses in penal favorably statutes. A statute operates to enlarge or to restrain

liberty: when the former, it is to be largely construed ; when the latter, cautiously and strictly. This is a maxim of the Roman law, which, though foreign to the notion of the old English common law, that crime is to be avenged in kind and in full measure, was at an early period adopted by English jurists. In construing such statutes, however, we are to look for their reasonable sense, and if this is clearly ascertained it must be applied, though a narrower sense is possible. The courts are, on the one

Penal stat

construed

to accused.

L. 42, D. de poen. (48. 19 ) Inter- in Kentucky; Com, v. Davis, 12 Bush, pretatione legum poenae molliendae 240, 1876. sunt potius, quam asperandae. L. 155, ? U. S. v. Jones, 3 Wash. C. C. R. & 2. D. de reg. iur. (50. 17.) In poena- 209, 1813; U. S. v. Staats, 8 How. 41, libus causis benignius interpretandum 1850; Cummings v. Missouri, 4 Wall. est. cap. 49. de reg. iur. in VI. (5. 13.) 277, 1866; U. S. v. Hartwell, 6 Wall. In poenis benignior est interpretatio 385, 1867; Brown v.Com., 8 Mass. 59, facienda. See, also, 1 Bl. Com. 86, 87; 1811; Ream v. Com., 3 S. & R. 207, Bac. Abr. Stat. i. 7, 9; Andrews v. U. 1817 ; Angel v. Com., 2 Va. Cas. 228, S., 2 Story, 202, 1842; U. S. v. Rags- 1820; State v. Taylor, 2 McCord, 483, dale, Hempst. 497, 1847; Com. v. 1823; Com. v. Whitmarsh, 4 Pick. Martin, 17 Mass. 359, 1821 ; State v. 233, 1826 ; People v. Mather, 4 Wend. Stephenson, 2 Bailey, 334, 1831 ; War- 229, 1830; Thomas v. Com., 2 Leigh, ner v. Com., 1 Barr. 154, 1845; Car- 741, 1830; People v. Hennessey, 15 penter v. People, 8 Barb. 603, 1850; Wend. 147, 1836; Com. v. King, 1 Randolph v. State, 9 Texas, 521, 1853; Whart. 418, 1836 ; State v. Girkin, 1 State v. Jaeger, 63 Mo. 403, 1876; Ired. 121, 1840; Stone v. State, SpenBucher v. Com., 103 Pa. 528, 1883. cer, 401, 1845; Hodgman v. People,

Contra, under New York Penal Code 4 Denio, 235, 1847; State v. Smith, 32 of 1882; under the California Code ; Me. 369, 1851; State v. Fearson, 2 Ex parte Gutierrez, 45 Cal. 429, 1873; Md. 310, 1852 ; State v. Keith, 63 N. People v. Soto, 49 Cal. 67, 1874; and C. 140, 1869. This qualification is

band, to refuse to "extend the punishment to cases which are not clearly embraced” in the statutes ; on the other hand, to refuse " by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope.”1 At the same time, in matters of reasonable doubt, this doubt is to tell in favor of liberty and life.?

$ 29. A law cannot impose a penalty on acts committed before its enactment. When a punishment is inflicted at common law, then the case is brought within the principle tive stat

Retrospecjust stated by the assumption that the case obviously utes inopfalls within a general category to which the law attaches indictability. It may be said, for instance, “All malicious mischief is indictable. This offence (although enumerated in no statute, and never in the concrete the subject of prior adjudication) is malicious mischief. Therefore this offence is indictable.” Strike out “malicious mischief” and insert "nuisance," and the same conclusion is reached. It is no reply to this reasoning that we have, by this process, judge-made law, which is ex post facto. Supposing the

3

common to all systems of jurispru- 1883; Bradley v. People, 8 Colo. 599, dence. Thus the Roman law : 1885. The main point, as in all statu

L. 6, 1. D. de verb. signif. (50. 16.) tory construction, is not to defeat the Verbum: ex legibus, sic accipiendum intention of the legislature. est, tam ex legum sententia quam ex Quoties de delicto queareitur, plaverbis. L. 3. D. de L. Pomp. de cuit, non eam poenam subire quem parric. (48. 9.) Sed sciendum est, debere, quam conditio eius admittit eo lege Pompeia de consobrino compre- tempore, quo sententia de eo fertur, hendi, sed non etiam eos pariter com- sed eam, quam sustineret, si eo templecti, qui pari proprioreve gradu sunt. pore esset sententiam passus, quum Sed et novercae et sponsae personae deliquisset. L. 7. C. de legg. (1. 14.) omissae sunt, sententia tamen legis L. 65. C. de decur. (10. 31.) Nov. 22. continentur. L. 1. & 13. D. ad SC. c. 1. cap. 2. 13. X. de constitt. (1. 2.) Turpill. (48.16.) verum hunc, can. 3. Can. 32. qu. 4. This is prequi hoc ministerio usus est ad man- scribed in the constitution of the U. dandam accusationem, non ex verbis, S., Art. I. & 9, cl. 3. Art. 1. % 10, cl. 1. sed ex sententia Senatus-consulti pu- But a test oath may under cerniri, Papinianus respondit. Quintilian. tain circumstances be constitutional. Declam. 331.

Wooley v. Watkins, 2 Idaho, 555, Sedgwick, Stat. Law, 282, ap- 1889; Shepherd v. Grimmett, 2 Idaho, proved in Atty.-Gen. v. Sillem, 2 H. & 1123, 1892. But see Cummings v. C. 430,531, 548, 1863.

Missouri, 4 Wall. 277, 1866 ; Ex parte 'U. S. v. Sheldon, 2 Wheat. 119, Garland, 4 Wall. 333, 1866; Wash1817; U. S. v. Wiltberger, 5 Wheat. ington v. State, 75 Ala. 582, 1884. 76, 1820; U. S. v. Morris, 14 Pet. 464, * See supra, 2% 14, 15 a; infra, & 1840; U. S. v. Clayton, 2 Dill. 219, 255. 1871; Hawkins v. People, 106 Ill. 628,

minor premise be correct, the objection just stated could not prevail without being equally destructive to most prosecutions for offences prohibited by statute under a nomen generalissimum. In most of our statutes, for instance, neither murder, burglary, nor assault is so described as to leave nothing remaining to the court by way of explanation or application. At the same time, if the offence charged is not one which by ordinary and natural construction falls within a prohibited class, it is far better that the criminal should escape, than that by a forced and unnatural construction the offence should be held indictable. So far as concerns statutes, the rule is rigorously applied, and is fortified by the constitutional provision that no statute shall have an ex post facto operation. And this clause has been interpreted as meaning that no person is to be subjected by statute either to a penalty for an act which at the time of its commission was not the object of prosecution, or to a penalty higher than was attached to such act at the time of its commission.”

$ 30. While acts imposing severer penalties cannot be applied retrospectively, doubtful questions as to what is a severer penalty are to be determined in favor of the accused; but, as a general rule, changes in a punishment subsequent to the commission of an

2

1 In re Murphy, 1 Wool. 141, 1867. 3 State v. Willis, 66 Mo. 131, 1877 ;

Or that in any way alters the posi- People v. McNulty, 93 Cal. 427. tion of the defendant to his disadvan- A statute which negatives a matter tage. Const. U.S. art. 1, 2% 9, 10; 2 of defence formerly admissible is ex Story, Const. 1345; Cooley, Const. post facto; Lindzey v. State, 65 Miss. Lim. (6th ed.) 318 et seq. ; In re Chin 542, 1888; so is one that reduces the A On, 18 Fed. Rep. 506, 1883; Com. credit on fine and costs allowed a conv. Lewis, 6 Binn. 266, 1814; Com. v. viet by his daily labor; In re Hunt, Reigart, 14 S. & R. 216, 1826 ; Com. 28 Tex. App. 361, 1890; one divesting v. Phillips, 11 Pick. 28, 1831; Myers the jury of discretion; Marion v. v. Com., 2 W. & S. 60, 1841; Rand v. State, 16 Nebr. 319, 1884; and one imCom., 9 Gratt. 738, 1852; State v. posing a penalty for non-payment of Hays, 52 Mo. 578, 1873; Garvey v. taxes then due; Gager v. Prout, 48 People, 6 Colo. 559; $. C. 45 Am. Ohio, 89, 1891. It has been held Rep. 531, 1883. See Ex parte Garvey, that a law changing the place of im7 Colo. 384; s. C. 49 Am. Rep. 350, prisonment from a county to a State 1884.

procedure, prison was not ex post facto; In re Perry v. Com., 3 Gratt. 632, 1846. Tyson, 13 Colo. 482, 1889; but the

According to C. J. Marshall, an ex authority of the federal courts is post facto law is one “which renders against this ruling. In re Medley, an act punishable in a manner not 134 U. S. 160, 1890; In re Savage, punishable when it was committed.” 134 U. S. 176, 1890. See People v. Fletcher v. Peck, 6 Cranch, 167, 1810. McNulty, 93 Cal. 427, 1892. This is adopted in 1 Kent Com. 409.

And see,

as

severer

1

offence, not consisting in a lessening of the prior penalty or some severable portion thereof, have no application to such

And so as offence. It is otherwise with statutes mitigating the to acts im

posing prior penalty, which statutes are not unconstitutional in respect to acts committed prior to their passage.?

penalty. Hence, where the punishments are capable of actual measurement, a milder recent statute in force at the time of trial supersedes, so far as concerns the penalty, a prior statute under which the offence was committed. Should it happen that between a severer

Hartung v. People, 22 N. Y. 95, are clearly in mitigation. So is one 1860; Shepherd v. People, 25 N. Y. that renders it impossible to convict 406, 1862; Kuckler v. People, 5 Park. the defendant of the degree of crime Cr. Rep. 212, 1862; Ratzky v. People, to which he was liable before its pas29 N. Y. 124, 1864; Wilson v. State, sage. Ex parte Garvey, 7 Colo. 384; S. 64 Ill. 52, 1872; State v. Willis, 66 c. 49 Am. Rep. 350, 1884. See 5 Crim. Mo. 131, 1877 ; Simco v. State, 8 Tex. Law Mag. 325. App. 406, 1880; Lindzey v. State, 65 When an offence has ceased to be Miss. 542, 1888; People v. Dane, indictable because of a statute of (Mich.) 45 N. W. Rep. 655, 1890. See limitations, indictability will not be Kring r. Missouri, 107 U. S. 221, 1882. revived by a repeal of the statute.

? Com. v. Wyman, 12 Cush. 237, Garrison v. People, 87 Ill. 96, 1877 ; 1853; State v. Kent, 65 N. C. 311, Moore v. State, 43 N. J. L. 203, 1881; 1871; Perez v. State, 8 Tex. App. 610, reversing s. C. 42 N. J. L. 208, 1880. 1880; Harr v. State, 16 Nebr. 601,

3 In Veal v.

State, 8 Tex. App. 474, 1881; McInturf, v. State, 20 Tex. App. 1880, it was held that in such case the 335, 1886; Ex parte Pells, 28 Fla. 67, defendant might elect to be punished 1891; People v. Hays, (N. Y.) 35 N. under the older statute.

State v. E. Rep. 951, 1894; aff. s. C. 24 N. Y. Cooler, 30 S. C. 105, 1889. sup. 194, 1893; Cooley, Const. Lim. It has been held that the defendant (6th ed.) 319 et seq.; Whart. Com. will be permitted to elect between the Am. Law, $ 473.

new and old penalty, especially when There has been some diversity of there is any doubt as to the question opinion as to what constituted a miti- of mitigation. Herber v. State, 7 Tex. gation. Where the punishment of 69, 1851; Clarke v. State, 23 Miss. death was changed by statute to fine, 261, 1852; Veal v. State, 8 Tex. App. whipping, and imprisonment, the law 474, 1880; McInturf v. State, 20 Tex. was held to apply to pending cases. App. 335, 1886. State v. Williams, 2 Rich. L. 418, After a law has been repealed, there 1846. But in Herber v. State, 7 Tex. can be no punishment under it. 69, 1851, a similar law was held ex Yeaton v. U. S., 5 Cranch, 281, 1809; post facto. But statutes permitting a Whitehurst v. State, 43 Ind. 473, 1873 ; conviction for a less offence; State v. Smith v. State, 45 Md. 49, 1876; Com. Johnson, 81 Mo. 60, 1883; lowering v. Cain, 14 Bush, 525, 1879; Hirschthe degree of a homicide; Lovett v. burg v. People, 6 Colo. 145, 1881; State, (Fla.) 14 So. Rep. 837, 1894; Lindzey v. State, 65 Miss. 542, 1888. and making executions more private; It follows, therefore, that when an act Holden v. State, 137 U. S. 483, 1890; is repealed, and the repealing act is

statute, during whose operation an offence was committed, and a milder statute, which was in operation at the time of the trial, a third statute was intermediately in force, milder than either, the last-named statute is not to be taken into consideration, the dominant statute being that which was in force at the time of the trial. But where after the commission of an offence a statute is passed assigning an increased penalty to second offences of a particular type, and then a second offence of such type is committed, the increased penalty may be inflicted on the second offence.? Procedure

§ 31. A statute, however, subsequent to an offence,

may change the mode by which it is to be prosecuted, of evidence

provided the punishment attached to the offence is not retrospect- thereby increased, or the defendant's rights materially changed. impaired.

The privilege, also, of merely technical objections may be inter

and rules

may be

2

ex post facto, there can be no prosecu- a continuation, not in any sense a tion as to crimes committed before its repeal, and applies to crimes prepassage. State v. Daley, 29 Conn. viously committed. State v. Wish, 15 272, 1860; Hartung v. People, 22 N. Y. Nebr. 448, 1884; Sage v. State, 127 95, 1860; S. C. 26 N. Y. 167, 1863; 28 Ind. 15, 1890; Ex parte Larkins, 1 N. Y. 400, 1863; Com. v. McDonough, Okl. 53, 1891. This applies to all re13 Allen, 581, 1866; State v. McDon- visions and codes. ald, 20 Minn. 136, 1873; People v. I Geib, ii. p. 46. Tisdale, 57 Cal. 104, 1880; State v. People v. Butler, 3 Cow. 347, 1824; Meader, 62 Vt. 458, 1890.

Plumbly v. Com., 2 Metc. 413, 1841; If judgment is not reached before Rand's Case, 9 Gratt. 738, 1852; Ex the passage of the repcaling statute, parte Gutierrez, 45 Cal. 429, 1873; the prosecution will be abated. People People v. Wood, 53 N. Y. 511, 1873; v. Meakim, 8 N. Y. Crim. Rep. 416, State v. Woods, 68 Me. 409, 1878; 1892.

People v. Raymond, 96 N. Y. 387, When the new statute inflicts a 1884; In re Wright, 3 Wyo. 478, 1891 ; punishment milder in some respects Com. v. Graves, 155 Mass. 163, 1891 ; only (e. g., lowering the maximum and In re Kline, 6 Ohio Cir. Ct. 215, 1892; raising the minimum), the old statute Sturtevant v. Com., 158 Mass. 598, is to be applied exclusively, as other- 1893; Blackburn v. State, 50 Ohio, wise the judge would be left at liberty 428, 1893. See, however, In re Ross, to pick out the parts of each statute 2 Pick. 165, 1824. that suited him, and so virtually make Cooley, Const. Lim. (6th ed.) 318 a new law. See Turner v. State, 40 et seq.; Whart. Com. Am. Law, & 473; Ala. 21, 1866. But see, on the other Calder v. Bull, 3 Dall. 386, 1798; State hand, Hälschner, System, i. p. 43; v. Manning, 14 Tex. 402, 1855. Berner, pp. 53, 54; Geib, ii. 47. A statute or constitution altering

If the new statute merely re-enacts the jurisdiction of crimes is not ex the old, or continues it in force, it is post facto. State v. Cooler, 30 S. C.

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