*JUNE TERM 1829.

Judges Present.*

*Brockenbrough, Semple,*

*Smith, Parker,*

*Dade, Upshur,*

*Saunders, Field,*

*Daniel, May.*

#### The Commonwealth v. Pegram.

June, 1829.

Statutes — Application to Offences Committed Previous to Enactment under Former Statute.† — A statute passed in tte session of assembly of 1827-8, prescribing a new punishment for an offence committed after the 1st May 1828, does not repeal former statutes, defining the offence, and prescribing other punishment for the same, as to such offence committed before 1st May 1828.

Henry D. Pegram was presented, in the circuit court of Henrico, in July 1825, for keeping and exhibiting a faro bank table.

This offence was, at the time of the presentment, punishable by imprisonment in the common jail, and by stripes at *the discretion of the court, by force of the act of 1822-3, ch. 32, § 1. But, by the act of 1827-8, ch. 36, *4,*it is enacted, that whoever shall hereafter be guilty of any of the offences enumerated in the 17th section of the statute against unlawful gaming (1 Rev. Code, ch. 147, pp. 566,7), shall be sentenced to confinement in the jail of the county, fora period not less than two nor more than eight months, and be fined in a sum not less than ' 200 nor more than 800 dollars, at the discretion of a jury. This offence of keeping and exhibiting a faro bank, is one of the offences enumerated in the 17th section of the statute against unlawful gaming.

Pegram was not arrested until December 1829. And being then brought into court, he moved the court to direct the attorney for the commonwealth, to enter a nolle prosequi or a dismission of the presentment, on the ground, that the 4th section of the act of 1827-8, above mentioned, as to'all offences committed before the passing thereof, repealed the 17th section of the statute against unlawful gaming, as well as the 1st section of the act of 1822-3. And the question, whether the act of 1827-8 did so repeal the former laws on the subject, was, with the consent of the accused and of the attorney for the commonwealth, adjourned by the circuit court to this court.

*

Judges Smith and Dade did not sit in any of the cases here reported.

†

Statutes— Prescribing New Punishments — Effect upon Offences Committed under Former Statute. — For the proposition that, a statute passed in the Assembly of 1827-8, prescribing a new punishment for an offence committed *after*May 1, 1828, does not repeal former statutes, defining the offence, and prescribing other punishment for the same, as to such offence committed *before*May 1, 1828, the principal case is cited and approved in Allen v. Com., 2 Leigh 731; Pitman v. Com., 2 Rob. 807, 808; also, in dissenting opinion of Christian, J., in same case; *foot-note*to Attoo v. Com., 2 Va. Cas. 882.

BROCKENBROUGH, J.

In the case of Attoo v. The Commonwealth, 2 Virg. Ca. p. 382, it was decided, that where a new statute prescribes a new punishment for an offence, which had been previously punishable otherwise, and the new statute repeals all laws which come within its purview, but does not provide that offences committed before the operation of the new law, shall be punished under the old, such repeal operates as a discharge of all such offenders. But that case is very different from this. There the law repealed and annulled the punishment enacted before that .time against the offenders; here the act of 1827-8 does not, either expressly or impliedly, repeal the' previous punishment *pre- ■ scribed by the act of 1822-3, except in the case of future offences. There is no repealing clause in the act of 1827-8; and although the principle is correct that leges posteriores priores abrogant, yet they only abrogate them from the time that the latter law is passed, or. goes into effect. The principle on which this rule prevails, is, that the latter statute being incompatible with the former, they cannot exist together, and the latest expression of the will of the legislature is the law. But there is no incompatibility in the statutes now under consideration. A punishment affixed to an offence prior to the 1st Majr 1828_, is not incompatible with a different punishment, either lighter or more severe, affixed to the same offence subsequent to that date. They may both well stand together. The punishment prescribed by the act of 1827-8 being different from that prescribed by the act of 1822-3, is certainly an implied repeal of it as to new offences from the time it goes into effect; but by the very terms of the law, the new punishment is not only applied to the offences happening after the 1st. May 1828, leaving the old punishment to be applied to the offences happening before that day. In the case of the Commonwealth v. Wtyatt, 6 Rand. 694, this principle was taken for granted, and a judgment was rendered against him under the act of 1822-3; which could not have been done, if that act were not still in force as to offences happening before the act of 1827-8.

Therefore, the court is of opinion and doth decide, that the 4th section of the act passed February 26, 1828, entitled “an act to alter and amend the laws against the keepers and exhibitors of certain unlawful games,’’ doth not repeal the 17th section of the act entitled “an act to reduce into one the several acts and parts of acts to prevent unlawful gaming,’’ nor the act *201passed the 21st day of February 1823, entitled “an act farther to amend the penal laws of the commonwealth,” as to offences committed against the 17th section of the aforesaid act prior to the 1st May 1828.