(Weight, C. J., dissenting). — This case comes before this court on the sole, broad question, whether there now exists any authority to punish the offence. Various views have been presented by counsel, involving, not only the changes which have taken place by repeal in- the ordinary statute laws of the territory and state, since the offence was committed, but also the great change produced by the adoption of our constitution, and the passing from the condition of a territory to that of a sovereign state. We deem it, however, necessary to notice one view only insisted upon in behalf of the prisoner, regarding that as decisive of the question.
It is claimed, that the power is not reserved by the Code, adopted in 1851, to punish offences committed under the act of 1839. In setting out, we assume that this prosecution can only be conducted, or punishment inflicted, by authority of the state; that is to say, that the right to punish the offence must exist, if it does exist, by virtue of statute law; that the power to punish must affirmatively appear; and that the court will not take upon itself the power to punish by implication. We also assume, as a matter of fact, about which there is no question, that the offence was committed, and the penalty incurred, while .the act, ajrproved January 25, 1839, was in force, as the criminal code of the then territory of Iowa. Subsequently, on the 16th of -February, 1843, an act entitled “An act defining crimes and punishments,” was approved; which act commences by de-*399daring, that “the following shall hereafter be the code of-criminal jurisprudence in the territory of Iowa,” and concludes (see Stat. 1843,193) as follows: That the act entitled an act defining crimes and punishments, approved January 25th, 1839, be and the same is hereby repealed : Provided, that any person or persons who may have committed any crime punishable under the provisions of the act hereby repealed, prior to the taking effect of this act, shall be prosecuted and punished according to the act hereby repealed, in the same manner such person or persons might or ought to be prosecuted and punished, if this act had not been passed.”
In 1851, an entirely new code of criminal law was adopted. By section 28 of this code, it is provided that all public and general acts passed .prior to the present session of the General Assembly, are repealed, &c., subject to the limitations and exceptions hereinafter expressed. Section 32 provides, that no offence committed or penalty or forfeiture incurred, under any act hereby repealed, and before the repeal takes effect, shall be affected by the repeal, except that where a punishment, penalty, or forfeiture is mitigated by the provisions herein contained, such provisions shall be applied to a judgment to be pronounced after the repeal.
Assuming, for the purpose of the present view, that the constitution, and the act adapting the laws in force to the state government, retained in force the statutes up to the adoption of the Code in 1851, we will proceed to inquire how the punishment or offence would stand affected by the laws above quoted. . The criminal code of 1839, was repealed by the act of 1843. But by virtue of the proviso contained in the 48th section of the latter act, persons who had offended against the act repealed, remained liable to be punished according to that repealed act. Section 28 of the Code, adopted in 1851, made one general repeal of all public acts, subject to certain exceptions. By this, the act of 1843, containing this proviso, was repealed, which repeal carried with it the proviso, by virtue of which alone the right to. punish offences against the act of 1839, existed. We1 think it, then, quite manifest, that unless there is some ex*400ception to the general repeal, by virtue of section 28 of the Code, above quoted, whereby the power to punish offences against the act of 1889 is reserved, that that power is gone. Unless the power to punish the offence, is reserved affirmatively, it would cease with the act that created it. If reserved affirmatively, as was this by the act of 1843, it would cease when the act reserving it was repealed.
But, it is claimed, that section 32 of the Code of 1851, does furnish such exception. The language there used is, “ no offence committed, and no penalty or forfeiture incurred, under any act hereby-repealed, shall be affected by the repeal.” This provision undoubtedly reserves the right to punish any offence committed under any act repealed by the Code; but the offence here charged, was not committed •under an act repealed by the Code; for the act under which •it was committed, was repealed by the act of 1843. But it may be said, that this is giving to the statute a construction tob literal. It must be remembered, however, that penal statutes, particularly in favor of life, or which is much about the same thing, liberty for life, should be construed strictly in bringing the case within the scope of the act. It is also claimed, that the intention of the legislature, was to reserve the right to punish offences liable to be punished under any former act at the time of the adoption of the Code, and not simply offences against' acts repealed by it. It would have been very easy for the legislature to have provided, that the repeal should not affect any offence committed before the time ■of the repeal, as is provided in section 31 immediately preceding the one under consideration, which is an exception in relation to civil matters from this same general repeal} the language there used being; “.This repeal of existing acts, shall not affect any act done,” &c., “ before the time when such repeal takes effect,” &c. But the legislature saw proper to provide ’otherwise. If allowed to speculate upon what was in the mind of the legislature, while much might be said on the one hand, as to the offence being one which has been always excepted from limitation laws, and the like ar-pgrfment, going to show that the legislature never intended *401-to relinquish tbe right to punish such offence; on the other hand, it may be urged, with equal plausibility, that a legislature, in adopting an entirely new set of-laws, has a perfect ■right to determine how far back in the past, courts shall go to punish public offences. And when we consider that the acts repealed by the Code, extended back eight years from the time of its adoption, to a time when society in the then territory was in its infancy — to a time when many exciting strifes, peculiarly incident to the settling of a new country existed — and also, that since that time, an entire change has -been effected in all our laws, both statutory and organic; there will be many circumstances found to exist to render •such a limitation at least reasonable. Again: if this con•struction should not be entirely clear- — should it even admit -of a doubt only — the prisoner is entitled to the benefit of -such doubt. Believing, as we do, that a right to punish 'offences committed under the act of 1889, is not saved from the general repeal of 1851, we conclude that the judgment must be reversed, and prisoner discharged from further confinement.