Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1865-01-19
IMPORTANT CASE UNDER TIE
ENROLMENT LAW.
Trial OF Ash Freeasan for Resisting
an Enrolling officer, Ia the Circuit
COurt for the Northern District of
Ohio.

an Enrolling officer, In the Circuit
COuFt for the Northern District of
Ohio.
We give below the interesting case of the
United States Us. Asa Freeman, who was
indicted for resisting an enrolling officer.
The defendant was indicted under the
25th Section of the Act of Congress, passed
March 8rd, 1858, for resisting and obstruct-
ing an enrolling officer. BE now moved to
quash the Indictment on the following
grounds:
First. The 25 Sec. of the Act of March
3rd, 1868, does not relate to an enrolment
under the act, or make resistance to an en-
rolling officer criminal.
Second. If said section does relate to an
enrolment, orsmake resistance to an en-
rolling officer criminal, it has, to that e1-
tent, been repealed By the Act of February
"a, 1864.
The motion was argued by Judge Hurd
for the defendant, and by the District At
torney for the United States. The author
tiles cited, are referred to in the opinion of
the Court.
WILSON j.
Different opinions have been held as to
the true construction of the 25th Section of
the Act of March Sd, 1868. The draft is
undoubtedly the leading object of the Act,
but the enrolment, provided for in the
same Act, is an indispensable prerequisite
of the draft and it has seemed to some that
|
draft could be made, was resisting a "ser-
vice in relation to " the draft, and there
fore within the words as well as the evil
dent spirit of the Act.
1t is unnecessary, however, to reconsider
now the views heretofore expressed by this
| Court on the question, for, assuming that
this Section does relate to the enrolment
and makes resistance TO an enrolling officer
criminal, it has been so repealed by the
Act of February oath, 1864, that this pros
ecution cannot, according to well settled
| principles, be further maintained. On the
above assumption, the o1fense ofwhich the
defendant stands charged, is by the Act of
| March Sd, 1863, punishable by fine not ex-
ceeding five hundred dollars. or by impris-
onment not exceeding two years, or by
both.
By the 18th Section of the act of Febru-
ary "A, 1854, the offense is expressly pro
vided for, and made punishable by fine not
exceeding FIVE thousand dollars, or impris-
onment not exceeding five years, or by
both. This change in the grade of pun
ishment creates an unquestionable ineon-
sisteLcy between the two acts SO far as this
offense is concerned, and, by implication,
repeals SO much of the act of March g.,
1868, as relates 10 the ofense in question.
ReT rs. Gator, 4 BlIrro1ss 20, N C.;
Reg rs. Davis, Leach, Cas- 3O6;
NichoL Us. jSqltires Pick, r. I6s;
Commonwealth vs. RambnU, q Puck,
R. 375.
But the matter is not left to implication
merely. By the 9th Section of the act of
February "a, 1884, so much of the act of
March 8, 1868, ss is inconsistent with
its provisions is expressly repealed
5gitt0Ht any e1ception or SGUinq clause
l1hateUer. The effect of this re
peal to leave the act of the defendant com
mitted on the 9th Of June, 1853, as charg-
! ed in the Indictment, without any law to
/ punish it and, consequently, to put an
end to this prosecution, for 1t is 4 general
/ rule, that the repeal of q law creating an
| offense, whether it be felony or misde-
meanor, sweeps away all prosecutiOls
against it itwithout Swing clause for that
purpose.
L WGS4. Z. Z. Rep. 81.
The reason of this rule is, that there can
be no legal conviction for an offense unless
the act be contrary to law at the time it is
committed nor can there be judgement
unless the law is in force at the time Of
the indictment and judgment. If the law
cease to operate by its own limitation, or
BY a repeal at any time before
judgment, no judgment can be
gigen. This rule always prevails
as it regards penalties, either civil or Grim
inal, unless the repeating clause makes it
operate prospectively, only preventing the
operation of the repeal and continuing the
repealed law in force as to all pending
prosecutions.
Wash. O. C. R. 81; Smiths Com. on
Constitutional and Statutory Construction,
Sec. 77O and cases cited +; Mitchell. Lessee, rs.
Eqster, o. Rep. Ist Pt. 257.
The Act of Feb, "a, 1854, so far ss it re-
lates to the ofense under consideration, is
prospective in its terms. 1t does not as
sumo to declare acts alresdy committed to
be criminal which were innocent. Neither
does it undertake to increase the punish
ment for past offenses. That would be to
transcend the constitutional power of
Congress, which is prohibited from passing
&C post facto laws.
Story Comm, Section 1345 Calder rs.
Bull, Dallas 1856; Fletcher IS. Peck, c. CIR.
lSS; United States rs. Hall, 2 Washington
@. o. r. I38.
On the whole, then, there being no law
under which judgment could be given
against the defendant in case he should
be found guilty OF the offense charged, the
prosecution cannot be further maintained
The motion, therefore, 10 guash the in
dictment is granted.