concurring. Judge Martin correctly states the law hi the case of the State v. Johnson, 12 La. 552, thus: “When an act, creating an offense, is repealed, even after judgment in the inferior court, the judgment must be reversed, if it has not been affirmed before the repeal. The reason is, that a legislative pardon is presumed to have been intended.'1
In the cases of the State v. King, and the State v. Kiltz, this principle of jurisprudence was recognized; and in these cases the court hold that the repeal of a penal statute, pending a prosecution under it, without a saving clause, puts an end to the prosecution, although the penal statute may, in the same act, be substantially re-enacted.
To the latter proposition I can not give my assent. The reason of the rule is stated by Judge Martin; it is, because a legislative pardon is presumed to have been intended. When the intention of the Legislature is manifested to the contrary, by the express terms of the statute, there can be no room for presumptions. And this is admitted by all, to be true, when this intention is shown by “a saving clause” in the act.
I think, if the intention of the lawmakers not to abrogate the old law, *277be clearly manifested in tlio act, in whatever mode it may be done, it will be equally efficacious in preserving the life or vitality of the law. In this case, that intention is clearly manifested by the re-enactment of the whole law — it is the same now that it was when the accused was tried and convicted in tho district court; and, at no time since the commission of the offense, has it been different.
The repealing clause was not intended, and can not fairly or reasonably be held, to apply to laws re-enacted in the statute of 1870. AÍ1 laws, not contained in the statute, on the same subject matter, are abrogated; but, nothing contained in the body of the statute itself is destioyed. In the ease of Stafford v. His Creditors, Mr. Justice Lea, as the organ of the court, said:
“In the case of the State, ex rel. Holmes, v. Wiltz, we lately held, that the repealing clause appended to the revisory acts of 1855, did not repeal such pre-existing statutory provisions as were re-enacted in the revisory statute.” 11 An. 470; 11 An. 439; 14 An. 840.
And, in Wright v. Oakley, 5 Metcalf 406, Mr. Chief Justice Shaw said: “In construing the revised statutes, and the connected acts oí amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the Legislature. In terms, tho whole body of the statute law was repealed; but these repeals went into operation simultaneously with the revised statutes, which wore substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. Thero was no moment in which the repealing act stood in force, without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and a modification of old laws, than as an abrogation of those old, and the re-enactment of the new ones.” 2 Wallace, 458.
In interpreting laws, courts should, if possible, construe them so as to avoid making them absurd or mischievous. I do not conceive that tho act of 1870 repealed the statute under which the accused was indicted; it continued the operation and effect of the old law. 21 An. 482, State v. Kreider.
For these reasons, I concur in the decree rendered by Mr. Justice Howe.
Rehearing refused.