
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    The State v. Kirkpatrick.
    rpf,e (jefen(iatlt; was charged with maliciously killing a horse,- in the night time, (the property ot a person named m the indictment;) but the’ governor having pardoned the criminal, there was no decision on the question, whether the statute which affords the culprit an election to be transported beyond the seas, is compatible with our laws.-
    Motion to reverse a judgment of the District Court of1 Chester* on demurrer to an indictment against the defendant, charging him with having, in the night time, maliciously, unlawfully, and wilfully^ killed and destroyed a horse, the property of a person iri the indict, ment named, contrary to the statute in such case made, and provided, and made of force in this State. The statute 22, and 23 C<i 2, c. 7. declares, that every such offence shall be adjudged felony ; but provides, that in case of conviction, to avoid judgment of death, the culprit may make his election to be transported beyond the seas, to any of the king’s plantations, for seven years. P. L. 30,, 100.
    The demurrer was overruled by Waties, J., who presided in the District Court.
    The motion was argued in this court, the 6th November, 1807,-before all the judges, except Trezevant, J., who was absent from indisposition.
    Nott, for the defendant,
    contended, that as the defendant .could not avail himself of the optional alternative afforded by the statute to British subjects, the statute ought to be considered as inoperative and void. When the statute was made of force, the legislature' probably contemplated a provision, for giving effect to it ‘ but this provision has not been made. The want of such a provision must be construed to be a virtual repeal of the statute ; or it may be con* sidered obsolete. He referred to the act of assembly of 1712, P. P. 100.
    Evans, Solicitor, for the State.
    The statute has been adopted by the legislative authority of this State, arid remains unrepealed.-It must, therefore, be obeyed, and enforced, as far forth as it is practicable and consistent with our constitution, the nature of our government, and subsequent acts of assembly. A law winch becomes' impracticable in part, is not in consequence, totally void.- The las® clause of the act of assembly of 1712, requires that the several statutes made of force, shall he put in force substantially ; that is to say, as far forth ns they can be carried into effect, they shall be exe. cuied and enforced. The substantial part of the statute under ... . eo istderalton, is to make the k llin»- of horses, hurtling of hams, &c., maliciously, iti the night time, felony, and to punish the same. This wise and necessary low ought nut to be exploded, as alto-gather obsolete, inoperative, or impracticable, because one alterna-live in the manner or degree of punisimieut, cannot be put in prac. tice.
    The decision of iho motion was delayed for various causes, until May, 1810, when the motion was withdrawn. The defendant had, in the interim, it was believed, received a pardon from the execu-live.
   The opinion of

Bbbvabd, J.,

was form, d w'ithin a few days after the motion was submitted, substantially as follow's. It has been objected, that the provision in the statute, which' affords the culprit an election to bo transported beyond the seas, is incompatible with the situation of tilt.-, ¡state, and the nature of its government ; and, therefore, that the statute must be considered 'impracticable in its execution, inoperative, and null. This objection to the impracticability of executing'the provision of the statute applies, l conceive, to those provisions only, which are impracticable in tlieir execution, arid not to those which are practicable. The legislature which adopted the statute must have been aware of the provision in it, which gives to the convict an election to be transported to one of the plantations. Thai body probably looked forward to some future legislative act, which would provide for the execution of those parts of the adopted English statutes, which, at the time of tlieir adop. tion, were either incompatible with the situation of the country, or dtd not admit'of practicable execution, conformably to the intention of the makers of those statutes. But,:at any rate, the legislature iu adopting those English statutes, and making them of force here) has carefully guarded against any construction, in the application of them, which would have the effect of rendering any material part of them - inoperative, or null, unless such a construction should be absolutely necessary. In the present case it is not necessary to declare the whole stam'e impracticable, and null. The particular provision to which the objection applies, is not necessarily so connected with the other parts of the statute, as that one cannot take effect, or be carried into execution, without the other. The last section of the act of assembly of 1712, declares, that the statutes therein enumerated shall be put in execution as to the substantial parts of them. It_ may be that the legislature did not intend this saloo for the particular case under consideration, but the Same construction would, 1 conceive, take place, if no such provision were made. It necessarily results from the nature of the case, and the general rules of legal construction. An established rule in the construction of statutes is, that they shall be so expounded as to give to them all the effect of which they are susceptible, according to the apparent intent of the makers .of them, and so as to prevent .their being eluded, if it be possible. Repeals, by implication of law, are not favored, because, it is said, they cast a reflection on the wisdom of the legislature. 11 Co. 63. 10 Mod. 118. Plowd. 466,13,88. Co. Litt. 24. Bac. Abr. “Statutes.”

My opinion is, that the judgment of the District Court ought to be supported, and the motion rejected.  