The indictment had been found at a court of Oyer 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. There is no express repealing clause, and the court will not imply a repeal from what appears upon the face of the act of 1866-1867. Pegram'scase, 1 Leigh, 623; Myatt's case, 6 Rand., 694; 2 Strob., 17; Queen v. Pughand al., 1 Mod., 107; S. v. Aiken, 39 N. H., 179; S. v. Taylor, 2 McCord., 491; Sturgeon v. State, 1 Black., 39, note; Sedge. Stat. Const., 125. 1. The Stat., 1866-1867 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., secs. 197, 203 to 205; S. v. Upchurch, 9 Ire., 454; Nicholls v. Squire, 5 Pick., 168; Comm. v. Kimball, 21 Pick., 373; Sullivan v. People, 15 Ill. 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 *Page 413 face of the new statute upon a strict construction of it. Bish., sec. 217;Pegram's case, 1 Leigh, 569; Allen v. Commonwealth, 2 Leigh, 727; Pittmanv. Commonwealth, 2 Rob. Va., 800; Anon., 1 Wn. C. C., 84 and 89. At the time when the offense was committed, larceny was punishable with whipping, imprisonment, and fine — one or all. S. v. Kearzey, ante, 481. Our statute of 1866-1867, chapter 82 (25 February, 1867), punishes larceny of a mule, etc., with death. And now it is insisted that this defendant cannot be punished at all; not under the statute of 1866-1867, because the offense was committed prior thereto; and not under the old law, because it is repealed by the new.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 which was not in existence at the time when the offense was committed, because that law would be ex post fact, 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 1866-1867 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, etc., he shall suffer death. All larcenies committed before that act are to be tried and punished without reference thereto. (545)
The motion in arrest of judgment ought not to have been allowed. There is error. Let this be certified, etc.
PER CURIAM. Ordered accordingly.
Cited: S. v. Wise, 66 N.C. 123; S. v. Massey, 103 N.C. 360; S. v.Coley, 114 N.C. 883; S. v. Perkins, 141 N.C. 803; S. v. Broadway,157 N.C. 600; S. v. Mull, 178 N.C. 750.