On Rehearing.
SOMMERVILLE, J.After having heard additional arguments, and having given further consideration to the case, we conclude that our former opinion and decree are correct, and they will be reinstated.
The several laws relative to burning and blowing up were formerly grouped in five sections of the Revised Statutes; from 841 to 845, inclusive. This grouping was retained until the year 1908, when Act 263, p. 384, *505was adopted. In that act sections 841 and 842, providing for the offenses of setting fire to and blowing up at night of houses in which people usually reside (section 841), and the setting fire to and blowing up of houses during the day in which people usually reside (section 842), were consolidated, without referring to section numbers 841 and 842; in other words, the dividing line between the offense being committed in the day and in the night was obliterated, and the offenses were denounced as one offense, and the penalty of death was provided for the commission of the crime.
It was under this act, numbered 268 of 1908, that defendant was indicted for setting fire to and burning a house in the nighttime in which persons usually resided.
[4] Act 263 was amended and re-enacted in 1918 by Act No. 108, p. 176. In amending and re-enacting Act No. 263 provision was made only for the blowing up of houses, etc. The setting fire to houses, etc., was omitted from the act. But in section 2 of that act, No. 108, the former act, No. 263 of 1908, was kept alive as to the burning of houses, which had been denounced in Act 263, and which offense had been committed prior to 1918. The proviso contained in section 2 of Act No. 108 is as follows:
“Provided no offense heretofore committed against the laws so repealed shall he condoned by this repeal, or prosecution thereof in any wise abated or affected.’’
In this last act, No. 108, the death penalty was reimposed as had been provided for in Act No. 263 of 1908. It therefore follows that defendant was properly indicted in 1914 under Act No. 263 of 1908, as the offense charged against him is charged to have been committed by him prior to 1918; and he is liable to prosecution only under said Act No. 263 of 1908.
Other sections of the grouping in the Revised Statutes, numbered 843 and 845, were amended by special reference to the sections by numbers. No. 844, covering the burning of fences, etc., has not been amended.
Section 843, referring to the burning or blowing up of outhouses, etc., was amended by Act No. 70 of 1914, p. 187, by excluding therefrom the blowing up of outhouses, etc. It provided as amended only for the setting fire to outhouses, etc.
The new grouping of the offenses of setting fire to and blowing up was made in the year 1918 by Acts No. 107, p. 175, No. 108, p. 176, and No. 123, p. 196. These three acts were introduced by the sanie member of the Legislature at the same session, and were known as House Bills Nos. 58, 59, and 61. They were evidently introduced on the same day. Acts 107 and 108 were approved on July 5, 1918, and Act 123 became a law without the Governor's signature at the same time. They were doubtless promulgated at the same time, and they became effective as laws in New Orleans on the same day. They are companion acts, and cover all of the sections of the Revised Statutes on the subject except section 844, with reference to the burning of fences, etc. They are laws in pari materia, and they must be read together.
In this new grouping the setting fire to buildings and the blowing up of buildings are separated, and they ate made separate offenses. Act No. 107 provides for the attempt to willfully and maliciously blow up any house, etc. Act No. 108 provides for the blowing up of houses, etc.; and Act No. 123, p. 196, provided for the setting fire to or attempting to set fire to a dwelling house, outhouse, etc. This last act amends and reenacts section 843, R. S., by excluding therefrom the attempt to blow up and the blowing up of any house etc., or any outhouse, etc. (which is denounced in Act 108), and by including therein the setting fire to and burning, or attempting to set fire to and bum, any dwelling house or outhouse, etc.; and *507the penalty therein is a sentence of not less than one year or more than 20 years at hard labor.
[5] Defendant contends that this last act, No. 123, operates a legislative pardon for him, as the penalty for the crime charged against him has been changed from that of death to that of hard labor. He shows that, while the indictment against him charges that he set fire to a house in which human beings resided, under Act 263 of 1908, which carried a death penalty, the later statute No. 123 of 1918, p. 196, provides for the burning of a dwelling house, which is the same thing as a house in which human beings usually reside, and that the penalty is changed from death to a ¡term in the penitentiary; and he argues that the later act, which has no saving clause,, operates a legislative pardon for him.
But Act 123 of 1918, p. 196, refers to the future, and not to the past. It cannot have any effect as to defendant, or to the offense of burning a dwelling committed prior to its passage, because the Legislature, at the same session, and on the same day, in' Act No. 108, said that:
“No offense heretofore committed against the laws so repealed (Act No. 263 of 1908, under which defendant was indicted) shall be condoned by this repeal, or prosecution thereof in any wise abated or affected.”
Acts 108 and 123 must be read together; and they plainly say:
“No offense heretofore eopimitted against the laws so repealed (Act 263 of 1908) shall be condoned by this repeal, or prosecution thereof in any wise abated or affected.”
Act 263 of 1908 was repealed by Act 108 of 1918, but the repeal did not affect prosecutions under Act 263, or condone any of-/ fense against that act. '
Act 123 of 1918 does not repeal Act 263’ of 1908, either in terms- or otherwise. Act - 123 is entitled “An act !to amend and, re- • enact section 843 of the Revised Statutes,” etc., which referred to the, burning of outhouses, etc. Act No. 263 wasj repealed in terms by Act 108 of 1918. Act 123 of 1918, amending and re-enacting section 843, R. S., now provides for 1jhe burning of dwelling houses, as does the already repealed act, No.-263 of 1908. , But, prosecutions under Act 2631 were not to be abated or affected by (the repeal.
The, law under which, defendant was indicted (No. 263 of 1908) having been retained in full force and effect by legislative action contained in the proviso in section 2 of Act No. 108, 1918, Act No. 123 of 1918 has no effect as to defendant or as to the crime, charged against him, and it does not operate as a legislative pardon as to him.
Act 123 is numbered in its regular order, but it does not contain subsequent action by the Legislature in 1918 to the action contained in Act No. 108 of the samo session; for the two acts were enacted on the same day. One act is not subsequent (to tbe other; they are both of the same date.
Prosecution of the defendant must proceed, according to the terms of Act No-. 108, of 1918, under and by virtue of tbe provisions of Act No. 263 of 1908, p. 384.
Our former opinion and decree in this case are reinstated; and they are made tbe opinion and decree in the; case.
PROVOSTY, J„ dissents. O’NIELL, L, dissents and hands down reasons. See 83 South. 783.