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. Penal stat construed § 28. The proposition that penal statutes are to be strictly construed 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 to accused. 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 1 1 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, 2. D. de reg. iur. (50. 17.) In poenalibus causis benignius interpretandum est. cap. 49. de reg. iur. in VI. (5. 13.) In poenis benignior est interpretatio facienda. See, also, 1 Bl. Com. 86, 87; Bac. Abr. Stat. i. 7, 9; Andrews v. U. S., 2 Story, 202, 1842; U. S. v. Ragsdale, Hempst. 497, 1847; Com. v. Martin, 17 Mass. 359, 1821; State v. Stephenson, 2 Bailey, 334, 1831; Warner v. Com., 1 Barr. 154, 1845; Carpenter v. People, 8 Barb. 603, 1850; Randolph v. State, 9 Texas, 521, 1853; State v. Jaeger, 63 Mo. 403, 1876; Bucher v. Com., 103 Pa. 528, 1883. Contra, under New York Penal Code of 1882; under the California Code; Ex parte Gutierrez, 45 Cal. 429, 1873; People v. Soto, 49 Cal. 67, 1874; and 2 U. S. v. Jones, 3 Wash. C. C. R. 209, 1813; U. S. v. Staats, 8 How. 41, 1850; Cummings v. Missouri, 4 Wall. 277, 1866; U. S. v. Hartwell, 6 Wall. 385, 1867; Brown v. Com., 8 Mass. 59, 1811; Ream v. Com., 3 S. & R. 207, 1817; Angel v. Com., 2 Va. Cas. 228, 1820; State v. Taylor, 2 McCord, 483, 1823; Com. v. Whitmarsh, 4 Pick. 233, 1826; People v. Mather, 4 Wend. 229, 1830; Thomas v. Com., 2 Leigh, 741, 1830; People v. Hennessey, 15 Wend. 147, 1836; Com. v. King, 1 Whart. 448, 1836; State v. Girkin, 1 Ired. 121, 1840; Stone v. State, Spencer, 401, 1845; Hodgman v. People, 4 Denio, 235, 1847; State v. Smith, 32 Me. 369, 1851; State v. Fearson, 2 Md. 310, 1852; State v. Keith, 63 N. C. 140, 1869. This qualification is hand, 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." At the same time, in matters of reasonable doubt, this doubt is to tell in favor of liberty and life.2 1 Retrospec erative. § 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 statjust 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 common to all systems of jurispru- 1883; Bradley v. People, 8 Colo. 599, dence. Thus the Roman law : L. 6, 1. D. de verb. signif. (50. 16.) Verbum ex legibus, sic accipiendum est, tam ex legum sententiá quam ex verbis. L. 3. D. de L. Pomp. de parric. (48. 9.) Sed sciendum est, lege Pompeia de consobrino comprehendi, sed non etiam eos pariter complecti, qui pari proprioreve gradu sunt. Sed et novercae et sponsae personae omissae sunt, sententia tamen legis continentur. L. 1. 13. D. ad SC. Turpill. (48. 16.) verum hunc, qui hoc ministerio usus est ad mandandam accusationem, non ex verbis, sed ex sententia Senatus-consulti puniri, Papinianus respondit. Quintilian. Declam. 331. 1885. The main point, as in all statutory construction, is not to defeat the intention of the legislature. 3 Quoties de delicto queareitur, placuit, non eam poenam subire quem debere, quam conditio eius admittit eo tempore, quo sententia de eo fertur, sed eam, quam sustineret, si eo tempore esset sententiam passus, quum deliquisset. L. 7. C. de legg. (1. 14.) L. 65. C. de decur. (10. 31.) Nov. 22. c. 1. cap. 2. 13. X. de constitt. (1.2.) can. 3. Can. 32. qu. 4. This is prescribed in the constitution of the U. S., Art. I. § 9, cl. 3. Art. I. ? 10, cl. 1. But a test oath may under certain circumstances be constitutional. Wooley v. Watkins, 2 Idaho, 555, 1889; Shepherd v. Grimmett, 2 Idaho, 1123, 1892. But see Cummings v. Missouri, 4 Wall. 277, 1866; Ex parte Garland, 4 Wall. 333, 1866; Washington v. State, 75 Ala. 582, 1884. 255. See supra, ? 14, 15 a; infra, 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.2 § 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 1 In re Murphy, 1 Wool. 141, 1867. 2 Or that in any way alters the position of the defendant to his disadvantage. Const. U. S. art. 1, 22 9, 10; 2 Story, Const. 1345; Cooley, Const. Lim. (6th ed.) 318 et seq.; In re Chin A On, 18 Fed. Rep. 506, 1883; Com. v. Lewis, 6 Binn. 266, 1814; Com. v. Reigart, 14 S. & R. 216, 1826; Com. v. Phillips, 11 Pick. 28, 1831; Myers v. Com., 2 W. & S. 60, 1841; Rand v. Com., 9 Gratt. 738, 1852; State v. Hays, 52 Mo. 578, 1873; Garvey v. People, 6 Colo. 559; s. c. 45 Am. Rep. 531, 1883. See Ex parte Garvey, 7 Colo. 384; s. c. 49 Am. Rep. 350, 1884. And see, as to procedure, Perry v. Com., 3 Gratt. 632, 1846. 3 State v. Willis, 66 Mo. 131, 1877; People v. McNulty, 93 Cal. 427. A statute which negatives a matter of defence formerly admissible is ex post facto; Lindzey v. State, 65 Miss. 542, 1888; so is one that reduces the credit on fine and costs allowed a conviet by his daily labor; In re Hunt, 28 Tex. App. 361, 1890; one divesting the jury of discretion; Marion v. State, 16 Nebr. 349, 1884; and one imposing a penalty for non-payment of taxes then due; Gager v. Prout, 48 Ohio, 89, 1891. It has been held that a law changing the place of imprisonment from a county to a State prison was not ex post facto; In re Tyson, 13 Colo. 482, 1889; but the authority of the federal courts is against this ruling. In re Medley, 134 U. S. 160, 1890; In re Savage, 134 U. S. 176, 1890. See People v. McNulty, 93 Cal. 427, 1892. And so as offence, not consisting in a lessening of the prior penalty or some severable portion thereof, have no application to such offence. It is otherwise with statutes mitigating the to acts imprior penalty, which statutes are not unconstitutional in respect to acts committed prior to their passage.2 posing severer 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.3 Should it happen that between a severer Y. 95, are clearly in mitigation. So is one that renders it impossible to convict the defendant of the degree of crime to which he was liable before its passage. Ex parte Garvey, 7 Colo. 384; s. c. 49 Am. Rep. 350, 1884. See 5 Crim. Law Mag. 325. When an offence has ceased to be Hartung v. People, 22 N. 1860; Shepherd v. People, 25 N. Y. 406, 1862; Kuckler v. People, 5 Park. Cr. Rep. 212, 1862; Ratzky v. People, 29 N. Y. 124, 1864; Wilson v. State, 64 Ill. 542, 1872; State v. Willis, 66 Mo. 131, 1877; Simco v. State, 8 Tex. App. 406, 1880; Lindzey v. State, 65. 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 v. Missouri, 107 U. S. 221, 1882. 2 Com. r. Wyman, 12 Cush. 237, 1853; State v. Kent, 65 N. C. 311, 1871; Perez v. State, 8 Tex. App. 610, 1880; Harr v. State, 16 Nebr. 601, 1884; McInturf, v. State, 20 Tex. App. 335, 1886; Ex parte Pells, 28 Fla. 67, 1891; People v. Hays, (N. Y.) 35 N. E. Rep. 951, 1894; aff. s. c. 24 N. Y. sup. 194, 1893; Cooley, Const. Lim. (6th ed.) 319 et seq.; Whart. Com. Am. Law, 473. revived by a repeal of the statute. It has been held that the defendant will be permitted to elect between the 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 er 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.2 Procedure of evidence may be § 31. A statute, however, subsequent to an offence, and rules may change the mode by which it is to be prosecuted, provided the punishment attached to the offence is not retrospect thereby increased, or the defendant's rights materially changed. ively impaired.3 The privilege, also, of merely technical objections may be inter ex post facto, there can be no prosecution as to crimes committed before its passage. State v. Daley, 29 Conn. 272, 1860; Hartung v. People, 22 N. Y. 95, 1860; s. c. 26 N. Y. 167, 1863; 28 N. Y. 400, 1863; Com. v. McDonough, 13 Allen, 581, 1866; State v. McDonald, 20 Minn. 136, 1873; People v. Tisdale, 57 Cal. 104, 1880; State v. Meader, 62 Vt. 458, 1890. If judgment is not reached before the passage of the repealing statute, the prosecution will be abated. People v. Meakim, 8 N. Y. Crim. Rep. 416, 1892. When the new statute inflicts a punishment milder in some respects only (e. g., lowering the maximum and raising the minimum), the old statute is to be applied exclusively, as otherwise the judge would be left at liberty to pick out the parts of each statute that suited him, and so virtually make a new law. See Turner v. State, 40 Ala. 21, 1866. But see, on the other hand, Hälschner, System, i. p. 43; Berner, pp. 53, 54; Geib, ii. 47. a continuation, not in any sense a repeal, and applies to crimes previously committed. State v. Wish, 15 Nebr. 448, 1884; Sage v. State, 127 Ind. 15, 1890; Ex parte Larkins, 1 Okl. 53, 1891. This applies to all revisions and codes. 1 2 Geib, ii. p. 46. People v. Butler, 3 Cow. 347, 1824; Plumbly v. Com., 2 Metc. 413, 1841; Rand's Case, 9 Gratt. 738, 1852; Ex parte Gutierrez, 45 Cal. 429, 1873; People v. Wood, 53 N. Y. 511, 1873; State v. Woods, 68 Me. 409, 1878; People v. Raymond, 96 N. Y. 387, 1884; In re Wright, 3 Wyo. 478, 1891 ; Com. v. Graves, 155 Mass. 163, 1891; In re Kline, 6 Ohio Cir. Ct. 215, 1892; Sturtevant v. Com., 158 Mass. 598, 1893; Blackburn v. State, 50 Ohio, 428, 1893. See, however, In re Ross, 2 Pick. 165, 1824. 3 Cooley, Const. Lim. (6th ed.) 318 et seq.; Whart. Com. Am. Law, ? 473; Calder v. Bull, 3 Dall. 386, 1798; State v. Manning, 14 Tex. 402, 1855. 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. |