BYRD, J.
1. Whether the words “feloniously took and carried away from a dwelling,” import a taking in a “dwell*51ing-house,” or not, the demurrer should have been overruled. In the first case, the indictment would be good under section 3170 of the Code; and in the latter, it would be simple larceny, and good under section 3173. The words “from a dwelling” do not have the same import as “in a dwelling-house”; and section 3170 has been construed by this court.—1 Bish. Cr. Law, §§ 294-306; Henry v. The State, at last term. See, also, Chambers v. The State, 6 Ala. 855" court="Ala." date_filed="1844-06-15" href="https://app.midpage.ai/document/state-v-chambers-6502333?utm_source=webapp" opinion_id="6502333">6 Ala. 855. The words “from a dwelling,” used in the indictment, may, perhaps, be treated as surplusage; but if not, it is only, at most, matter of description, which, if necessary to be proven, can only be taken advantage of on the trial, and by asking an appropriate charge of the court. It is true, that the form in the Code, for the offense described in section 3170, uses the words “from a dwelling-house,” instead of “in a dwelling-house”; yet, on the trial, the proof must show that the taking was “in a dwelling-house.” But this is another objection which must be made in the progress of the trial, and not by demurrer to the indictment. The prisoners in this case saw proper to rest their defense, as to this point, on demurrer, and in no other manner; and as the sentence is for three years’ confinement in the penitentiary, we can not tell, except from the entry made on the demurrer, whether the court sentenced them under section 3170 or section 3173. But it is evident from the ruling on the demurrer to the indictment, as set out in the judgment-entry, that the court sentenced the prisoners under the latter section.
2. The verdict is responsive to the indictment, and authorized the judgment rendered on it.—Case v. The State, 26 Ala. 17" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/case-v-state-6505448?utm_source=webapp" opinion_id="6505448">26 Ala. 17; Jones v. The State, 13 Ala. 157; Hawkins v. The State, 9 Ala. 137" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/hawkins-v-state-6502777?utm_source=webapp" opinion_id="6502777">9 Ala. 137; Nancy v. The State, 6 Ala. 483" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/nancy-v-state-6502225?utm_source=webapp" opinion_id="6502225">6 Ala. 483. The evidence introduced on the trial is not set out in the record, and we must presume that the jury found the value in gold and silver, according to the evidence; and there is no error in such finding. Whether the indictment is to be taken as good under section" 3170 or section 3173, the verdict responds to it in finding the “defendants guilty of larceny of the property as charged in the indictment”; and if defendants desired to raise any question on that point, they could *52have done so by ashing a charge of the court on the trial, and, if refused, excepting.
3. The counsel for the prisoner insists, that an act of the 15th December, 1865, (Pamph. Acts, p. 116,) is a repeal of sections 3170 and 3173 of the Code, as to the punishment; and argues that, as that act provides another and more aggravated punishment, it by implication repeals the punishment provided in said section of the Code, and that the new punishment can not be inflicted. We concede that the new punishment can not be inflicted, where it has been aggravated in comparison with the punishment declared by the law at the commission of the offense. The other branch of the argument this court has fully considered in the case of Miles v. The State, at this term, and in other cases; and its conclusion is adverse to the position taken by the prisoner’s counsel.
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 *53hold, that the discretion given to the jury by the act can only be exercised as to the alternative punishments prescribed by the act, and has no reference whatever to the punishment prescribed by the Code; and that alternative punishments prescribed by the act are only to be administered upon persons who, after the passage of the'hot, “shall be guilty of the offense of grand larceny,” &o. The act certainly applies, by its terms, only to offenses committed after its passage. The ingredients of the offenses mentioned therein are not changed; the punishment, as to a certain class of persons, who after its passage “shall be guilty,” is prescribed, and it is greater than the punishment prescribed by the prior law for the same offenses; and this, upon principles of the common law, neither expressly nor by implication, repealed the former statute.
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 *54exr-post-faeto laws prohibits the infliction of such a punishment.—Calder v. Bull, 3 Dal. 391; Carpenter v. The State of Penn., 17 Howard, and authorities there cited.
The judgment is affirmed.