New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-15

IMPORTANT DECISION OF JUDGE ABELL.-
The following is the substance of 4 decision
of Judge Abel in the case of State vs. J. H
Quientero delivered yesterday:
The prisoner stands indicted for murder
under the first section of an act of the Gen
eral Assembly, approved March IA, 1855.
| This is rule TO quash an Indictment
| found under an act of the fourteenth March
| 1855. 1t is in the nature of demurrer,
which for the purpose of this rule. admits
every material allegation. The prisoner
contends that, admitting his guilt he has
| received statutory pardon by the repeal of
| an act of the General Assembly, approved
| fourteenth March, 1856, under which this
| proceeding was instituted.
BY an act of the General Assembly, enti-
tied an act relative to "crimes and offences, !"
approved the fourteenth of March, 1855, all
the criminal and penal statutes of the state
contained in the several statute books issued
from lS05 to 1855 were re-enacted, and at
the close of the act there Was prudently, l
think, inserted saving clause, IN these
words:
''SECTIoN l26. Be it further enacted, etc.,
That this act shall not operate as discon.
tinuance of any prosecution already COM
menced, nor as bar to prosecutions for
offenses committed against any law in exist.
ence at the passage of this act"
The act Of the fourteenth March, to take
effect the first April, 1870, has no such
saving clause 1t has a repeating clause, in
these words: section 1880. That all laws or
parts of laws contrary to or in conflict with
the provisions of this act, and all laws or
parts OF laws on the same subject matter,
except what may be contained in the Re
vised Civil Code and Code of Practice of the
present session, be and the same are hereby
repealed, except the thirty third section Of
an act entitled an act for the punishment of
crimes and misdemeanors,' approved May
4, O805} eighteen hundred and five; and
that in so far as there may be any conflict
between the provisions of this act and any
provision of the said Revised Civil Code and
Code of Practice, that the said code shall be
held and taken as the law governing, and
this act take effect on the first day Of April
A. D. eighteen hundred and seventy
Qs7O)"
In language this is an unconditional re-
peal, and the mention and saving of the |
one section indicates by strong rule of |
legal construction, the intention OF the Leg |
iSlature to repeal all others not mentioned |
1t is said in all the books that a repeal of a |
criminal statute without a saving clause is |
fatal to pending prosecution at any time |
before final judgment.
If the act of 1855, has been repealed. either |
through mistake or design, it can not now |
be corrected by judicial or legislative action.
''COurts nave no power to correct mistakes
or omissions of the Legislature" Rex vs..
Iabe. A and E, 531; Green VS.. Wood, III
B, IFS. Oversight in emitting clause can
not be remedied." Lawton vs.. Hickman,
}, B, SOS, "Words can not be altered or
to carry out obvious intentions
md spirit Of penal enactment" Coe VS..
Lawrence, E. C. L., R. SIG.
The rule of construction in cases of repeal
las been settled by a series of adjudications
n this State, the most of our sister States,
nd in England. The Legislature of this
state has said, in plain and unsmbiguous
anguage, that all laws and parts of laws
N the same subject, ETC., are repealed.
After sustaining his views by extracts from
number of legal authorities, the learned
udge concludes:
l paraphrase this language by the declara-
ion, that an indefinite number of bad men
al better escape punishment, than the I
ldicial ermine of the State should be {
tained by the blood of one man without
w. My position leads me earnestly 70
ope that the decision rendered in the case 4
IL State vs.. Brewer will not become I /
- 1eaek Without argument and con~