State v. M'Donald

• Decision Date: 01 January 1873
• Parties: STATE OF MINNESOTA v. ANGUS McDONALD and another.
• Court: Minnesota Supreme Court

Page 119

20 Minn. 119

STATE OF MINNESOTA

v. ANGUS McDONALD and another.

Supreme Court of Minnesota.

Certificate by the district court, Goodhue county.

J. C. McClure, for the State.

E. T. Wilder and Smith & Van Slyck, for defendant.

BERRY, J.

In December, 1871, defendants were indicted under section 7, chapter 98, Gen. St., for pulling down and destroying a dwelling-house. The section reads as follows: "If any of the persons so (referring to section 1) unlawfully assembled, demolish, pull down, or destroy any dwelling-house, or any other building, or any shop, steam-boat, or vessel, he shall be punished by imprisonment in the state prison not more than seven years, nor less than three years." By an act approved March 1, 1872, the legislature enacted: "Section 1. That section 7 of chapter 98, of the General Statutes of Minnesota, be and the same is hereby amended so as to read as follows: Section 7. If any of the persons so unlawfully assembled, demolish, pull down, or destroy any dwelling-house or any other building, or any shop, steamboat, or vessel, he shall be punished by imprisonment in the state prison not more than seven years, nor less than three years, or by fine not exceeding $1,000, in the discretion of the court. Sec. 2. This act shall take effect and be in force from and after its passage."

At the May term, 1872, of the district court, defendants demurred to the indictment, and for the purpose of obtaining the decision of this court upon the question raised by such demurrer, the judge of the district court has reported the case here under the provisions of section 1, c. 76, Laws 1870.

The demurrer was, in our opinion, well taken. Whether in strict accuracy the act of March 1, 1872, could be said to have repealed section 7, c. 98, Gen. St., it is not necessary to inquire. It certainly added to and altered it, so that it is no longer the same law as before the addition and alteration. In other words, section 7, c. 98, Gen. St., is no longer in force, but the act of March 1, 1872, has superseded it and taken its place. It follows, as a matter of course, that the defendants cannot be convicted or punished under section 7, c. 98, Gen. St.

This brings us to the remaining question, whether the defendants can be convicted or punished under the act of March 1, 1872. The defendants say no, because, as they argue, the act of March 1, 1872, is prospective, or, if not prospective, it is, as to them, in this case ex post facto. It is either...