dissenting. I am not able to concur in the decree in this case. I think With Mr. Justice Cole, that the Act approved the 9th of March, 1855, to provide for the trial of slaves accused of capital offences in the parish of Orleans is repealed.
That Act, by itself, is Wholly inadequate for the trial of slaves, as has been shown by Mr. Justice Cole. It can only have effect when its provisions are aided by the general law on the subject of the trial of slaves. It is within the express provisions of the repealing clause of the Act approved 19th of March, 1857, and it is but reasonable to suppose it is also within the intendment of that Act; for it cannot have any effect without the aid of the very statute which declares its repeal.
But I think there is an objection to this prosecution, of a character still more grave. The law, in my opinion, punishing the offence, has been repealed. The repeal of a penal statute during the pendency of a criminal prosecution under it, has always been held to be fatal to the prosecution, even though the action might bo pending on appeal. This well settled rule of law has been recognized by this court and enforced under this statute, as has been remarked in the opinion in this case just pronounced. See also State v. Johnson, 12 L. R. 547; Bishop’s Criminal Law, sec. 103.
*813It is conceded that the offence charged in the first count of the information, viz., that of having administered poison to Levi Smeher, is repealed, because, as I understand the argument, the offence is punished by the 5th section of the Act of 1857 in question, it being specially applicable to slaves, and the general statute on the subject of crimes makes no mention of an offence in precisely the same terms ; that of administering poison with an intent to commit the crime of murder, being alone punished by the Act relative to crimes and offences.
This concession makes it only necessary to consider the offence charged in the second count. The latter count charges that the prisoner at, &c., willfully, feloniously, and of her malice aforethought, did kill and murder one Levi Smeher, contrary to the form of the statute, &c.
Now, I find that the first section of the Act of 1857, relative to slaves, is in these words:
“ Be it enacted, &c., That any slave who shall commit the crime of murder, shall be punished with death,”
If I concede that the Act of 1856, relative to crimes and offences, which declared in its first section that whoever shall commit the crime of murder shall suffer death, could be applied to slaves, I do but admit that there was a law or a part of a law on the subject-matter, of the punishment of a slave who should commit murder, in force on the 19th day of March, 1857. Eor if it be applied to the punishment of slaves in whole or in part, it embraces in its subject-matter the punishment of the crime of murder, when committed by slaves. Now, if I refer to the repealing clause of the Act approved that day, I find, in the most sweeping terms, it repeals all laws and parts of laws conflicting with the provisions of this Act, and all laws on the same subject-matter.
Again, if I read the first section of the Act relative to crimes in this way every person, whether white, black or a slave, who shall commit the crime of willful murder, on conviction thereof, shall suffer death, I shall find that I have brought the same in conflict with the first section of the Act relative to slaves, which has provided for the punishment of the slave who should commit murder. The first section of the Act of 1855, relative to crimes and offences, is therefore repealed, so far as it affects slaves, both because it is on the same subject-matter and because it is in conflict with the Act of 1857.
If it be objected that the crime of murder is of that atrocious character that it cannot be supposed that the Legislature intended a general pardon and amnesty to all slaves under prosecution for such offence, I can only reply, that it is admitted that the Act in question operates the general pardon of the heinous offences committed by the same class of persons. Moreover, it is in conformity to the repealing clause of the Act of 1855 relative to slaves and free persons of color hold unconstitutional, and the Act relative to dealing with slaves, also approved the 19th day of March, 1857, p. 183.
The rule of law on the subject of the effect of a general repeal of a penal statute is well known, and the repealing clause is explicit. It is sufficient, I think that ita lex scripta est.