(dissenting). — I most respectfully dissent mom the foregoing opinion I first premise, that the crime charged is among the highest known to the law, and has always been so treated and regarded by the laws of civilized nations. While by our laws, and those of all the states, -certain periods of limitation are fixed, within which most other crimes must be prosecuted, yet, with regard to this cffence, such is its enormity, no such limitation, it is believed,, has ever been made. In all such statutes, this crime, like -treason against the government, will be found to -be expressly •excepted. And hence, in 1848, in the act for the limitation of suits on penal statutes and criminal prosecutions, which -provided that all prosecutions for offences committed before the organization of the territory, should fail and be utterly null and void; this crime, with a few others, was expressly •excepted. And as, by the majority opinion, section 82 of the Code, is -treated substantially as a statute of limitations, *402I think this thought worthy of much consideration. For if, in all our past legislation, and that of other states, care has been taken to reserve the power, without limit, to punish this offence, I will not believe that such right has been surrendered by implication, or by language that does not show a clear surrender of the right.
Again: I admit that, but for the saving clause, contained in section 48 of the act of 1848, there would have remained no power to punish this offence. The provision there made as to past offences, however, I think, was substantially to that extent a re-enactment of the law of 1839. Then, up to the adoption of the Code, it is conceded, that this offence could have been punished. I ask, by what authority, and why? Clearly, because it was in violation of the law of 1839, which, as to past offences, was expressly continued in force. For such offences, it was just as much the law of the land, as was the law of 1846, for all subsequent offences. Our courts, in the administration of it, and in punishing offences committed thereunder, must necessarily have so treated it. It had all the vitality of the law of 1843, with reference to any violation of its provisions, committed before the law repealing it. The power to prosecute, convict, and punish offenders against the act repealed, remained as perfect as if the repealing act had never been passed. There was no power to punish created by the repealing act of 1843, but an express preservation of a power that before existed. The Irresistible, t Wheat. 551.
Could this power be taken away, except by the same power that gave it ? Certainly not. When, then, was this power, so preserved, revoked, recalled, abrogated, or repealed? By the 32d section of the Code, it is said. Very well. Then, was not such repeal or revocation of the power so preserved, as much an act thereby repealed, as was the law which preserved the power ? If so, and I cannot otherwise regard it, then I am clear that the saving clause of that section, saves and preserves the power to punish this offence, as completely as it does the power to punish infractions of the law of 1843. Further, I admit that power to *403punish this offence ought to appear affirmatively, and should not be taken by implication. But if the .power to punish was clear and manifest, at the time of the adoption of the Code, which must be, and is conceded, then such power should not be taken away by implication. While such statutes should receive a strict construction, yet the intention of the law-making power, ought not to be defeated by an over strict construction. United States v. Morris, 14 Pet. 464. The rule does not exclude the ajcplication of common sense, in order to avoid an absurdity which the legislature ought not to be presumed to have intended. Commonwealth v. Loring, 8 Pick. 370. And if you may construe so as to avoid an absurdity, so I think you may, to avoid the conclusion that the legislature designed to revoke the power to punish a crime of so great enormity, unless such intention is evident. The law will not favor repeals by implication. Wood v. The United States, 16 Pet. 342; Smith’s Com. 879 ; Bruce v. Schuyler, 4 Gillman, 221. And, upon a like principle, it would appear reasonable, that the law would .not favor, by implication, the revocation of a presumed power to punish the crime of murder. So, all parts of a statute, and different statutes, in pari materia, whether repealed or not; in short, the whole system of legislation, on the subject matter, is to be considered with reference to the intent. Smith’s Com. 751; United States v. Fisher, 2 Cranch, 386; 1 Kent, 468. Under this rule, if by the act for the limitation of criminal prosecutions, before referred to,' which is a part of our legislation on this subject, prosecutions for certain offences were prohibited, and the crime of murder was excepted, we will be justified in saying that the intention, in this case, was to.do that by implication, which never before was done directly and expressly.
So, also, by another statute on the subject of repeals, passed July 30, 1840, and re-enacted in the session of 1843, it is provided that no offence, committed previous to the time when any statutory provisions shall be repealed, sba.11 be affected by this repeal. This is a part of the legislation on this subject matter, and, as such, shows quite clearly *404that the object has continuously been, to prevent, by constant guards, the very state of things which is held to exist by the opinion of the majority.
I conclude, then, that the statute of. 1843 did not destroy or create the law of 1839, but continued it in full force, so far as related to offences committed under it; that it so continued in force, until the adoption of the Code; and that the Code did not destroy or abrogate the power to- punish offences committed under it, but saved it — the same as it did under the law of 1843. Also, that our whole system of legislation, as well as that of all the states, shows that the power to punish the crime'of murder, has,seldom, if ever, been limited by time, and never has been revoked or recalled, except by express provision. And, finally, that in the construction of even penal statutes, we are to search out and follow the true intent of the legislature, and to adopt ‘the sense which harmonizes best with the context, and promotes, in the fullest manner, the apparent objects and policy of the legislature. United States v. Mim, 3 Sumner, 207 ; The Schooner Harriet, 1 Story, 251. And the construction which I claim, while it does not, in my opinion, violate any language used, does harmonize- with the context, and the legislation on this subject, and promotes fully the objects and policy of the legislature. Believing, as I do, then, beyond any fair or reasonable doubt, that this offence is still punishable under our law, I am constrained to dissent from the order discharging the prisoner.