40 Ala. 49 | Ala. | 1866
It is insisted by the counsel, that the latter clause of the act of the 15th December, 1865, in these words, “at the discretion of the jury trying the same,” secures to the prisoners the right to have the term of their imprisonment fixed by the jury, and at their discretion. But the penalty prescribed in the act is death, or imprisonment in the penitentiary for any period not less than five years. Now, here is a case of alternative punishments, as to which the jury is authorized to exercise a discretion, and inflict either. But, under sections 3170 and 3173, there is no alternative punishment as to which the jury can exercise any discretion; and, by section 3621, the court is required to fix the term of imprisonment. And this is an additional argument, if one was needed, to show that the legislature never intended by this act to repeal the sections of the Code (3170 and 3173) referred to, as to the punishment to be inflicted on offenses committed before that time. It is a grave question, whether the act affects section 3170 at all. It certainly does section 3173, which punishes “grand larceny” committed after its passage.
Legislative enactments often get the law into a twist difficult for the courts to unravel; but it is the duty of the courts to do so, if they can, and preserve- the harmony and consistency of the statute and common law. We therefore
Bepeals by implication are never favored, and for such a repeal to take effect, the repugnancy must be clear. A statute is never repealed by the repugnancy of matter in' a subsequent one, except to the extent of such repugnancy. If such repugnancy between two statutes effects a repeal of the former to the extent of the opposition, and leaves a field still for the independent operation of both, the latter does not repeal the former as to such matter not affected by the later statute. If a new penalty is provided, of such a character as repeals by implication the punishment prescribed by the former law for the same offense, then, if the new punishment aggravates the former, it can not be administered ; nor can this be done though the former law is not repealed by implication or otherwise, if the offense was committed prior to the passage of the new statute. For instance, if the new statute provided that an offender could be punished, for an offense committed prior to its passage, by imprisonment in the penitentiary for five years, or by the punishment prescribed at the time of the commission of the offense, which was death, then the prisoner should at least have an election; but, if the new statute should provide that offenders prior to the passage of the act should be punished in a way which aggravated the punishment, though this would have been a good statute by the common law, yet, in this country, the constitutional provision against
The judgment is affirmed.