
    
      Ex Parte Larkin.
    
      [Opinion Filed Feb. 7, 1891.]
    
    1. Territorial Legislature — Powers—Under Organic Act Okla.T. § 6, providing that the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the laws and constitution of the United States, it is competent for the legislature to continue in force, after the adjournment ol the First legislature, the Criminal Code of Nebraska, extended to the Territory by the organic act, § II, until the adjournment of the first session of the legislature.
    2. Ex Post Facto Law — Act 1st. Assem. Okla. T., § I, continuing in force the Criminal Code of Nebraska, which, by the organic act, was extended to that Territory till the adjournment of the first session of the legislature, is valid, and not ex post facto, as to offences already committed, but not prosecuted and punished.
    
      Habeas Corpus.
    
    
      Thurston & Merrick, for petitioner.
    
      Chas. Brown and C. B. Freeman, for the Territory.
   The opinion of the court was delivered by

Green, C. J.:

This is a petition in this court for a writ of habeas corpus. The writ was issued, directed to the sheriff of Logan county, who brought the body of the petitioner into court, together with the cause of his caption and detention.

It appears from the petition and return, that the petitioner was indicted by the grand jury of Logan county, at the September term, 1890, of the district court, for the crime of incest and rape upon the person of his daughter, Della Larkin, and that he was taken upon a capias issued on that indictment, and, in default of bail, was committed to the common jail to await his trial.

The ground upon which his discharge from imprisonment is asked is, that the indictment is for an offense against the criminal code of the state of Nebraska, which was extended to and put in force in the Territory of Oklahoma, by the organic act, until after the adjournment of the first session of the legislative assembly of said Territory, which occurred at the close of the 24th day of December, 1890; and, inasmuch as the law creating the offense has expired, there can be no trial, conviction and judgment upon the indictment; and that the legislative assembly had no power to continue the law in force as to crimes already committed against it and prosecutions pending therefor.

Before the adjournment of the first session of the legislative assembly, an act was passed and approved, which provides, inter alia, as follows:

“SEC. 1. That as to all. offenses committed in this Territory against the laws of Nebraska, while in force in this Territory, said laws so offended against shall continue in force, until the apprehension and prosecution, and until the punishment and penelty is (are) imposed upon such offenders.
“Sec. 2. That as to all offenses mentioned in the preceding section, in which prosecutions are now pending, the laws of criminal procedure of the state of Nebraska, now and heretofore in force in this Territory, shall continue in force for the purpose of prosecuting such offenses, but for no other purpose.
“SEC. 3. That as to all offenses mentioned in section one of this act, where prosecutions have not yet been commenced, such offenses shall be prosecuted under the procedure in force in this Territory after the adjournment of the first session^of the legislative assembly.”

The last section of the act provides, that it shall take effect, and be in force, from and after the adjournment of the first session of the legislative assembly.

Section eleven of the organic act, which extends to and puts in force, in the Territory of Oklahoma, the criminal code of the state of Nebraska, so far as necessary to be stated, has the following provisions:

“That the following chapters and provisions of the-compiled laws of the state of Nebraska, in force November first, eighteen hundred and eighty-nine, in so far as they are locally applicable, and not in conflict with the laws of the Unitéd States or with this act, are hereby extended to and put in force in the Territory of Oklahoma, until after the adjournment of the first session of the legislative assembly of said Territory.”

But no saving clause, or provision, is made in the organic act, as to crimes committed and prosecutions pending, at and before the adjournment of the first session of the legislative assembly.

It is very clear, upon principle and authority, that if the act of the legislative assembly, continuing in force the criminal code of Nebraska, as to all crimes committed, and prosecutions pending under it, has no validity to accomplish what was proposed by it, the petitioner cannot be further prosecuted for the crime charged against him in the indictment, and should be discharged from his imprisonment.

Sir Mathew Hale, in his history of the Pleas of the Crown, states the rule of the common law, that when an offense is made treason or felony by an act of Parliament, and then the act is repealed, the offenses committed before such appeal, and the proceedings thereupon, are discharged by such repeal, and cannot be proceeded on after such repeal, unless a special clause in the act of repeal is made, enabling such proceedings, after the repeal, for offenses committed before the repeal. (Pleas of the Crown, vol. 1, p 291.)

The law, as stated by this learned author, has been steadily adhered to in England and in this country; and has been held and applied in innumerable cases, a few only of which it is necessary to cite.

In the cases of Yeaton v. The United States, 5 Cranch, 281, and The Schooner Rachel v. The United States, 6 id., 329, judgment of forfeiture upon proceedings in admiralty had been pronounced in the court of original jurisdiction, before the repeal of the statutes which gave the forfeiture, and both judgments were reversed, on account of such repeal, by the supreme court. In the first case, Chief Justice Marshall said:

“After the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.”

The result of all the authorities is briefly and clearly stated by Mr. Bishop:

“If the common or statutory law, which authorizes a prosecution and conviction for any offense, is repealed, or expired, before final judgment, the court can go no further with the case. Even after verdict is rendered against the prisoner, or after he has pleaded guilty, sentence cannot be pronounced, and he must be discharged. The same result follows, if there is a judgment which has been vacated by an appeal on a writ fo review. But after final judgment, a repeal of the law will not arrest the execution of the sentence.” (Statutory Law, chap. 20, p 165.)

It is earnestly contended by counsel for the petitioner, that the legislative assembly had no power to continue in force the criminal code of Nebraska, and that the act by which it is attempted to be done is an ex post facto law and forbidden by the constitution of the United States.

By section 6 of the organic act it is provided,

“That the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States.”

This delegation of power is very ample, and there is no provision of the constitution and no law of the United States with which the act of the legislative assembly is not entirely consistent, unless it is obnoxious to the objection of being an ex post facto law. Surely the continuing in force of the criminal law offended against, until the offender is convicted and the penalty of the law enforced, is a “rightful subject” of legislation within the meaning of the organic act.

It is urged, however, that inasmuch as the criminal •code of Nebraska was extended and put in force in the Territory of Oklahoma, until after the adjournment of 'the first session of the legislative assembly, by act of congress, it cannot be continued in force by an act of the legislative assembly of the Territory; in other words, that only the power which created the laws •could continue them in force.

It was intended by congress that the laws of Nebraska should constitute a Territorial code, as distinguished from the laws of the United States in force in the 'Territory of Oklahoma; and that they should sustain the same relation to the courts, and to the people of the Territory, and to the legislative assembly, as a code •of laws enacted by the legislative assembly; and no reason is perceived why the legislative assembly might not have continued in force all the laws of Nebraska that-were extended to and put in force in the Territory by the organic act; and if the legislative assembly had the power to continue these laws as a whole, it had the power to continue them in force as to all crimes committed and criminal prosecutions pending under them.

It is also objected to this act, that it is an independent act, and that a saving clause can only be made in the repealing statute itself. That the saving clausé is usually found in the repealing act, may be admitted; -but that it must be found there cannot be conceded. In most of the states of the Union, a saving of rights and prosecutions under a repealed statute is effected by a general law, and no provision is made in the repealing act at all; but the repealing act and the general law are construed together.

The case at bar does not, however, involve the question of a saving clause in repealing statute; it is the ex piration of a statute by its own limitation; and, if continued in force at all, as to crimes committed and prosecutions pending, it could only be done by an independent act. And so we understand the language of Chief Justice Marshall, quoted from Yeaton v. U. S., riba supra.

The act of the legislative assembly took effect eo instanti the criminal code of Nebraska would have expired, and continued it in force, as to all crimes committed and prosecutions pending, so that its continuity was not broken; and that there has been no moment of time, as to such crimes and prosecutions, when it can be said that it has not been in force.

The only remaining objection to the act of the legislative assembly is, that it is an ex post facto law within the meaning of the constitution of the United States. This objection to the act is wholly without force. It in no manner changes the punishment to be inflicted upon the petitioner, in the event of his conviction, nor does it, in the least, change the mode of trial; but the prbceedings are to be conducted to conviction and judgment under the provisions of the law against which the alleged crime was committed.

In Fletcher v, Peck, 6 Cranch, 87,-138, Chief Justice Marshall defined an ex post facto law to be, one which rendered an act punishable “in a manner in which it was not punishable when it was committed,” and Chancellor Kent expressed his approval of this definition, which, he says, is distinguished for'its comprehensive brevity and precision. (Kent’s Com, Vol. 4, p. 409.)

In Calder v. Bell, 3 Dallas, 386, Judge Chase stated his apprehension of what is meant by an ex post facto< law. He said such laws were,

"First. Any law which makes an act done before the passing of the law, and which was innocent when done, criminal. Second. Any law which aggravates a crime, and makes it greater than it was at the time when it was committed. Third. Any law which changes the punisment and inflicts a greater punishment than the law annexed to the crime when committed. Fourth. Any law which alters the legal rules-of evidence.”

No valid objection is'perceived to the act of the legislative assembly, continuing in force the criminal code of Nebraska, as to all crimes committed and prosecutions pending; and the discharge of the petitioner from his imprisonment is denied, and he will be committed to the common jail of the county to await his trial on-the indictment.

Discharge denied.

All the justices concurring.  