On Application nob Rehearing.
Fenner, J.The suggestion that the original opinion herein rules, in any manner, as to the effect to be given to the second clause of See. 976 of the' Revised Statutes and of the 33d section of the Act of 1805 relating to “ the forms of indictment, the method of trial, the rules of evidence, and other proceedings,” etc., in criminal prosecutions, and declaring that they “shall be according to the common law, unless otherwise provided,” is entirely unfounded.
It must be conceded that the jurisprudence of the State has always extended the provisions of this second clause to other crimes besides those named in the Act of 1805, and however illogical it may be (in view of the word “said” in the 33d section), we have no disposition to change a rule so deeply interwoven into our criminal system. But with reference to the first clause of the 33d section, the jurisprudence is precisely opposite. In the case of State vs. Smith, 30 An. 846, this court distinctly held as follows: “ The general criminal statute enacted in 1805 did not adopt, as a portion of our law, all the crimes and misdemeanors known to the common law at that date. It merely adopted the common law definitions of those offences declared to be crimes by that act, and incorporated, as a part of our system, the common law mode of prosecution as to forms of indictment, method of trial, rules of evidence and all other common law proceedings in criminal cases.”
The same ruling was repeated in State vs. Depass, 31 An. 487. We take the foregoing to be a correct statement of the judicial exposition of the meaning and effect of the 33d section of the Act of 1805, and we have simply adhered to it.
Our conviction remains unaltered and very decided that neither the act of Í805, nor Sec. 976 of the Revised Statutes made or intended any change in the law of the State as thus established under the 33d section of the act of 1805, as to which it does seem to us that the care taken in both acts expressly to reserve that section from repeal removes all possible doubt. Indeed, were it *646otherwise, and should it be held that these later statutes were designed to go beyound the act of 1805 and to extend the adoption of the common law system as applicable to all criminal offences, grave doubts would arise as to their constitutionality under Art. 31 of our present Oonstitution: “The General Assembly shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall recite at length the several provisions of the laws it mas7 enact.”
This provision has been embodied in all our Constitutions.
The 33d section of the Act of 1805 was held to be exempt from the operation of this prohibition only because it was adopted prior to the first Oonstitution of 1812, and because this court declined to give a retrospective operation to this constitutional provision. State vs. Lacombe, 12 An. 195.
This accounts for the wise solicitude of the Legislature, in the later statutes referred to, to keep the 33d section in force and to preserve it from repeal, and warns us against the attempt now made to convert these later acts into new and different statutes which would have no claim to exemption from submission to the constitutional test.
In conclusion, we may say that we have not laid down any technical rules of precision in the definition of the acts constituting penal offences. When the language used in criminal statutes has any clear and definite meaning indicating the particular kind of acts which are made punishable, we should give liberal effect to the legislative intent. But when, as in this case, the language employed is of such vague and indefinite import that it might embrace many acts which could not possibly have any criminal character, and leaves the discrimination between these and others to arbitrary judicial discretion, we are bound to hold the statute to be violative of constitutional rules referred to in our original opinion.
Rehearing refused.