
    Supreme Court—General Term—Third Department.
    
      March, 1889.
    PEOPLE v. PAGE.
    Repeal of Statute under which Indictment is Found.
    Where the statute under which the defendant was indicted had ceased to exist before his trial took place, no different statute enacted after the commission of the act for which he was indicted can be invoked against him; and he therefore must escape, because no penal law exists to which he is amenable.
    Appeal by defendant Liscomb R. Page, from a judgment entered upon a conviction upon an indictment for obtaining property by means of false pretenses, rendered at the Warren County Sessions, June, 1888.
    
      
      J. M. Whitman, for defendant, appellant.
    
      G. B. Patterson, district-attorney, and A. D. Wait, for the people, respondent.
   Landou, J.

The defendant was indicted at the Oyer and Terminer, in Warren County, in February, 1874, for feloniously obtaining goods of one Peek by means of false pretenses respecting his means and ability to pay. The indictment was found under section 53, article 4. title 3, chapter 1, of the fourth part of the Revised Statutes (2 R. S. m. p. 677). The defendant was tried and convicted upon the indictment at Warren County Sessions, in June, 1888. The pretenses proven upon the trial were verbal and not in writing, and Peck sold the goods to the defendant.

The Penal Code took effect December 1, 1882. By section 528 the offense of obtaining property by false pretenses is made larceny, and the punishment prescribed differs from that prescribed by the section of the Revised Statutes under which the defendant was indicted.

The defendant, therefore, could not have been tried under the ex post faeto law of the Penal Code. And if he had been, he could not have been convicted, because section 544 provides: “A purchase of property by means of a false pretense, is not criminal where the false pretense relates to the purchaser’s means or ability to pay, unless the pretense is made in writing, and signed by the party to be charged.” Section 544.

The trial court held that the provisions of the Revised Statutes governed the case. Section 725 of the Penal Code provides : “ Nothing in this Code affects any of the provisions of the following statutes; but such statutes are recognized as continuing in force, notwithstanding the provisions of this Code, except so far as they have been repealed or affected by subsequent laws: .... 4. All acts defining and providing for the punishment of offenses and not defined and made punishable by this Code.”

If this section kept the provisions of the Be vised Statutes respecting the offense of obtaining property by false pretenses in force, it did so only until June 5, 1886. By chapter 593 of the Laws of that year, all of the first, second, third, fourth, and fifth sections of chapter first of the fourth part of the Be vised Statutes were repealed. This repealed the section under which the defendant was indicted and tried. Nothing in the Penal Code or Code of Criminal Procedure could be effective to prevent a subsequent legislature from repealing a statute which those Codes sought to perpetuate.

The statute, therefore, under which the defendant was indicted, had ceased to exist before his trial took place.. No different statute enacted after he committed the acts for which he was indicted could be invoked against him. He therefore escapes, because no penal law exists to which he is amenable for the acts proved against him. Hartung v. People, 22 N. Y. 95.

Conviction and sentence reversed, and, as no conviction can be had, the defendant must be discharged.

Learned, P. J., and Ingalls, J., concur.  