
    JEFFRIES AND JEFFRIES (freedmen) vs. THE STATE.
    [INDICTMENT EOR LARCENY OE MULE.]
    1. Sufficiency of indictment in description of defendant. — In an indictment which, was found in October, 1865, which describes the defendants as freedmen, and which alleges that the offense was committed by them before the finding of the indictment, it is not necessary to aver whether they were freedmen or slaves at the time the offense was committed.
    2. Judicial notice of general orders for regulation of army. — This court will taire judicial notice of “General Orders, No. 100,” approved by the president of the United States on the 24th April, 1863, which dispenses with a proclamation of martial law in any place occupied hy an invading army of the United States, and declares all local laws suspended hy the presence of the occupying army.
    3. Suspension of State laws behqeem 20th July md 21 st Sepiembei', 1865.— Between the 20th day of July, 1865, when the provisional governor of Alabama issued a proclamation, declaring the civil and criminal laws of the State, “as they stood on the 11th day of January, 1861, except that portion which relates to slavery, to he in full force and operation’’; and the 21st day of September, 1865, when the State convention, called hy the provisional' governor, adopted an ordinance, ratifying, with certain specified exceptions, all the laws enacted hy the legislature subsequent to the 11th day of January, 1861, the laws enacted hy the legislature subsequent to the 11th day of January, 1861, were not in force. (Walker, C. J., dissenting.)
    
    4. Ptimishment for larceny of mule. — For the larceny of a mule at any time between the 20th July and the 21st September, 1865, a conviction can not be had under the act approved October 7th, 1864, (Session Acts, 1864, p. 19,) but may be had under section 3180 of the Code. (Walker, C. J., dissenting.)
    
    Feom tbe Circuit Court of Greene.
    Tried before tbe Hon. James Cobbs.
    The indictment in this case, wbicb was returned into court on tbe 19th October, 1866, charged that, “before tbe finding of this indictment, Washington Jeffries and Lafayette Jeffries, freedmen, feloniously took and carried away two mules, tbe personal property of John W. Walton; against tbe peace and dignity,” &c. Tbe defendants moved to quash tbe indictment, and also demurred to it, assigning as grounds of demurrer — “1st, that tbe defendants are described as ‘freedmen,’ — a term generally understood to mean ■persons of color, who were slaves before tbe abolition of slavery in Alabama; and tbe indictment does not show whether tbe offense charged was committed by them while slaves, or after they became free” ; “2d, that tbe indictment should have shown that, at tbe time of tbe commission of tbe offense charged, tbe defendants were free negroes.” Tbe court overruled tbe demurrer, and tbe defendants then pleaded not guilty.
    “On tbe trial,” at tbe October term, 1865, as tbe bill of exceptions states, “tbe State introduced evidence tending to show, that tbe defendants feloniously took and carried away tbe mules mentioned in tbe indictment, belonging to John W. Walton, on tbe 28tb August, 1865; and there was, also, evidence tending to prove that tbe defendants, who are negroes, were slaves prior and up to tbe time of tbe general abobtion of slavery in Alabama. This was all tbe evidence in tbe case, and no point was raised as to the commission of’ tbe act. Tbe court charged tbe jury, among other things, that if they bebeved from tbe evidence, beyond a reasonable doubt, that tbe defendants, before tbe finding of tbe indictment, and in tbe county of Greene, feloniously took and carried away tbe mules mentioned in tbe indictment, and that they were tbe property of John W. Walton, they were guilty as charged; and that if they found tbe defendants guilty, they should say, by their verdict, whether they should suffer death by banging, or be imprisoned in tbe penitentiary for a term of years not less than ten. Tbe defendants excepted to this charge, and requested tbe court to instruct tbe jury as follows: ‘H tbe jury bebeve, from tbe evidence, that tbe offense charged in tbe indictment was committed by them prior to tbe adoption by tbe late State convention of tbe ordinance reviving and ratifying, among other acts, tbe act approved 7th October, 1864, (Session Acts of 1864, p. 19,) and that tbe defendants were slaves before tbe institution of slavery was abobsbed in Alabama, then the defendants can not be convicted under an indictment framed upon said statute, or subjected to tbe penalties prescribed by it; and that if tbe jury believe, from tbe evidence, that tbe offense charged in tbe indictment was committed by tbe defendants before tbe adoption by tbe late State convention of tbe ordinance abolishing slavery in this State, and that said defendants were slaves before tbe institution of slavery was abolished in this State, they can not be convicted and punished under said act of tbe 7th October, 1864.’ Tbe court refused each of these charges, and tbe defendants excepted to their refusal.”
    Tbe jury returned a verdict of guilty, and affixed tbe punishment at ten years imprisonment in tbe penitentiary; and tbe court rendered judgment according to tbe verdict.
    E. MoegaN, and Gso. Goldthwaite, Jr., for tbe prisoners.
    John W. A. Saneobd, Attorney-General, contra.
    
   BYRD, J.

Tbe indictment is in substantial conformity to tbe forms given in tbe Code, and tbe rules prescribed therein. — Chapter 7, title 2, part 4. Tbe term “'freedmen” is descriptive of tbe status of the defendants, and does not vitiate tbe indictment. It has a legal signification.—Vide Ordinance No. 39, adopted September 29, 1865; 1 Bouvier’s Law Dictionary, 548. If, on tbe trial, it bad appeared in evidence, or by law, that they were slaves, and not freedmen, if an available variance, it could have been taken advantage of, by asking an appropriate charge. But tbe view we take of this case relieves us from expressing any further opinion upon this question, at this time. Tbe court properly refused to quash tbe indictment, and overruled tbe demurrer.

Tbe act approved October 7, 1864, was not in force between tbe 20th July, 1865, and tbe 21st day of September thereafter. It is apparent from tbe record, that tbe defendants were tried and sentenced under tbe provisions of this act. This State, on tbe 11th day of January, 1861, in a convention of her people, adopted an ordinance withdrawing “from tbe union known as tbe United States of America,” and repudiated ail allegiance to ike national government ; and, in confederation with other states of that union, maintained by force of arms this ordinance until May, 1865, when her territory was taken possession of by tbe military power of tbe United States, and martial law thereby declared under tbe “instructions for tbe government of armies of tbe United States in tbe field.”—Vide General Orders, No. 100, approved by tbe president April 24,1863, which declare, that “a place, district, or country, occupied by an enemy, stands in consequence of tbe occupation under tbe martial law of tbe invading or occupying army, whether any proclamation declaring martial law, or any public warning to tbe inhabitants, has been issued or not. Martial law is tbe immediate and direct effect and consequence of occupation or conquest. Tbe presence of a hostile army proclaims its martial law.” “Martial law, in a hostile country, consists in tbe suspension, by tbe occupying military authority, of tbe criminal and civil law, and of tbe domestic administration and government in tbe occupied place or territory, and in tbe substitution of military rule and force for tbe same, as well as in tbe dictation of general laws as far as military necessity requires tbis suspension, substitution, or dictation. Tbe commander of tbe forces may proclaim tbat tbe administration of all civil and penal laws shall continue, either in whole or in part, as in times of peace, unless otherwise ordered by the military authority.” Of tbis order we are bound to take judicial notice.—Ex parte Hill, 38 Ala. 438.

Under tbe provisions of tbis order, tbe act of tbe 7th October, 1864, was suspended by tbe occupation of tbe State by tbe United States army, and tbe surrender of General Taylor, in May, 1865. Tbis occupation and declaration were accompanied by an adequate military force to sustain and enforce them; and thereby subjected tbe State, and tbe citizens thereof, to tbe status of a conquered country, in which tbe will of tbe conqueror becomes tbe law of tbe land, regulated and restrained by tbe principles and institutes of international law.—Vide Vattel, pp. 426, 427; also, book iii, ch. 13; United States v. Howard, 2 Gal. 485; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191; Strother v. Lucas, 12 Peters, 412, and cases therein cited; Canal Appraisers v. The People, 17 Wendell, 171; 20 How. 176.

Tbe president of tbe United States, in June, 1865, as commander-in-chief of tbe army and navy, appointed iLewis E. Parsons provisional governor of tbe State; who, on tbe 20th day of July, 1865, issued a proclamation, by which be declared and ordained, among other things, tbat, “from and after tbis date, tbe civil and criminal laws of Alabama, as they stood on tbe 11th January, 1861, except tbat portion which relates to slavery, are hereby declared to be in full force and operation, and all tbe proceedings for tbe punishment of offenses against them will be turned over to tbe proper civil officers, together with tbe custody of tbe person charged; and tbe civil authorities will proceed in all cases according to law.” Tbis declaration very clearly, by im-pbcation at least, excludes the idea, tbat tbe laws enacted after tbe llth January, 1861, by tbe State legislature, were to be in force after tbe date of tbe proclamation; and tbis, upon tbe famibar maxim, expressio unius est exclusio dlterius. And tbis declaration is recognized as binding on tbis court, as tbe United States Government bas never disavowed it.

Tbis position is confirmed by tbe action of tbe late State convention, wbicb was called and organized under tbe same authority. That organic body recognized in its ordinances tbe appointment and authority of tbs provisional governor of Alabama, and continued him in office, and made provision for the payment of bis salary and tbe officers appointed by him. — Vide Ordinances, Nos. 4,16, 24, 28, 32, 33, 34, 37, 45, 48, 50, 51, and 52.

To strengthen and fortify tbe position taken in tbis case, we consider it proper to refer to tbe views wbicb the State convention seems apparently to have taken upon tbe subject of tbe validity and operation of tbe laws enacted subsequent to tbe 11th January, 1861, after tbe occupation of tbe State by tbe national forces; and we do tbis without committing ourselves to tbe correctness of tbe conclusions to wbicb tbe convention seems to have come as to their validity before tbe occupation. Tbe convention, by ordinance No. 5,'provides, that “ all laws enacted since tbe 11th day of January, 1861, wbicb bad not been repealed, and wbicb were-not in conflict with tbe constitution of tbe United States, or laws made in pursuance thereof, or with tbe constitution of tbe State, were ratified and declared to be valid from their respective dates, and shall remain in full force and effect, until repealed according to law,’ excepting certain laws therein specified. Tbe adoption of ordinance No. 26 is persuasive to show in what light tbe convention looked upon tbe acts of public officers of tbis State, and “ all judgments, orders, and decrees, of tbe several courts of tbis State, regular upon their face, bad, done, and performed, or ordered to be done, under color of law, and in pursuance thereof; and all acts and sales of executors, administrators, trustees, and guardians, and of judicial and ministerial officers, bad, done, and performed, and made in pursuance of and under color of law, and in good faith, since tbe 11th of January, 1861,” wbicb were not in conflict with tbe constitution of tbis State or tbe United States. These, and others, are evidently ordinances of repose, and should be liberally construed to effectuate the purposes and objects thereof; and by giving them a construction which would relieve persons from the penalties of the criminal law, and hold them bound by their contracts, will not be inconsistent with, or violative of the policy and spirit of those ordinances; for such a construction is in harmony with the repose intended to be secured.

If the convention had entertained the opinion, that all laws passed by the legislature subsequent to the 11th day. of January, 1861, were valid, it would have been unnecessary to have ratified them; unless it were of the opinion that those laws had been suspended by virtue of the occupation of the territory of the State by the national forces, or the proclamation of the provisional governor; and in either, or both cases, it would have been legitimate, and eminently appropriate, for the convention to have given so inany of those laws vitality and validity as it saw proper in its wisdom to do. But, in doing so, it could not impart to them any operative effect, so as to make any one liable to the infliction of the punishments provided by such laws, for an offense committed during their suspension. It would be doing violence to the ordinance to give it such a construction ; and such as was never intended by-the convention. If so, it would have been in violation of the constitution of the United States; and statutes and ordinances should be so construed, as never to make the intention of the makers conflict with the organic law. To give these ordinances an ex-post-facto operation as to crimes, would be unconstitutional.—See Bill of Rights, §§ 8, 24; Bloodgood v. Camack, 5 Stew. & Porter, 276; 1 Kent’s Com. 455.

If such laws, or any of them, were in conflict with the constitution of the State, or of the United States, they were invalid, and, as against the constitution of the United States, could not have been ratified by the convention, so as to have imparted any validity to them; nor does the ordinance attempt to do so. Such laws as were ratified, were in consonance with both constitutions; and if. they were in force prior to, or at the date of the surrender and occupation, there is another theory upon which it might be conceived that the convention acted; and that is, that the stern and inexorable logic of events had reduced the State and its citizens to the status of a conquered sovereignty within the limits of a superior sovereignty, against wbicb the subordinate bad sought and failed to set up a permanent independent government, and by such failure had become subjected to the rules and principles of law applicable to all sovereignties in a similar condition; that is, to such rules and principles of national and international law as are applicable to the conquest of ah independent sovereignty, and to a dependent or subordinate sovereignty, which, in an effort to withdraw from, and repudiate its allegiance to the national government, had been overpowered, and reduced to submission. In the former case, the will of the conqueror becomes the law of the conquered ; and in the latter, it may be insisted that the laws of the subordinate sovereignty become void, unless ratified or sanctioned by the national authority; and which has been done, to a certain extent, by the convention, which was organized and held under the direct authority and sanction of the executive and administrative head of the Federal government. But, to adopt this theory, would be harsh, and not consistent with the declarations of, and principles announced by, the executive department of the government: and therefore, we prefer to construe the action of the convention on the theory first considered and adopted.

If there is any other sound and consistent theory, which can solve the difficult questions arising out of the action of the convention, and our peculiar and complex system of State and National sovereignties, and our present condition, it has not yet occurred to us. Neither the ordinances of the convention, nor the proclamation of the provisional governor, is an express abrogation or repudiation of the validity of the laws passed subsequent to the 11th January, 1861. But we are satisfied the effect of the latter was, on the doctrine of implication, at least, to suspend their operation from the 20th day of July, 1865, to the 21st day of September thereafter; such is the clear legal result.

The people, looking at the proclamation, would very naturally and properly come to the conclusion, that the act of the 7th October, 1864, was not in force during the time indicated ; and it would be unjust and illegal to visit the severe penalties of that law, upon an offense committed during that period; especially, when there was a law in force, and put in force, too, by the proclamation, under which another and a statutory punishment can be inflicted, if the defendants shall be found guilty on another trial.

We are of opinion, that the defendants were free persons of color at the time the offense was committed, as shown in the b'ill of exceptions.—See Smith (a freedman) v. The State, decided at this term. The Code (§ 8180) makes provision for such offenses by such persons. The indictment in this case is good, and the defendants could have properly been convicted under it, if the offense charged had been committed after the 20th of July, 1865, and before the finding of the indictment.

"We hold, that the ratification of the act of October 7th, 1864, on the 21st September, 1865, does not repeal section 3180 of the Code; and that both statutes are in force,— the first, as to offenses committed since the 21st September last, and the Code as to offenses committed prior to that time and subsequent to the proclamation. Whether both are in force now, as to the offenses described in the act of 1864, as it is not raised by the record, nor can have any influence on this case, if the evidence is set out correctly in the record, we intimate no opinion; nor can the other questions so ably discussed in the written argument submitted by appellants’ counsel, and not settled by this opinion, likely have any influence over this case on another trial.

The court erred in the charge given, and in the sentence pronounced. Let the cause be reversed, and remanded for further proceedings in conformity to this opinion; and the defendants.will.be retained in custody by the sheriff, until discharged by due course of law.

Walker, C. J.,

concurs in this opinion, upon the motion to quash the indictment, and the demurrer thereto, and dissents from the opinion of the court on the other questions adjudicated therein.  