
    William Teague et al. v. The State of Mississippi.
    1. Statutes: repeal oe statute imposing a penalty stops proceeding TO COLLECT PENALTY INCURRED WHILST IT WAS IN EORCE. — After the expiration or repeal of a law, no penalty can be enforced nor .punishment inflicted for its violation committed whilst it was in force, unless some «pecial provision be made for that purpose by statute. See leaton v. TJ. S.,. 5 Oranch, 281; Stone v. Sum/raM, 1 Watts, 258 ; Lewis v. Foster, 1 ÍT. H. R. 61; 7 Barr (Penna.) R. 178 ; 9 Ind. R. 309.
    2. Same : case in judgment. — A party was indicted for selling liquors in violation of a statute which prohibited the sale of vinous and spirituous liquors within a certain locality in any quantity whatever; he entered into recognizance for his appearance, which he forfeited, and judgment nisi was entered against him and his sureties. The Act under which he was indicted was then repealed, but the repealing Act provided that “it should not be so construed as to release or discharge from punishment any who had violated the Act intended to be repealed by selling vinous and spirituous liquors in less quantities than one gallon:” — Held, that this last Act must be construed so as to save a prosecution under the first Act, although the indictment did not charge the sale in less quantities than a gallon, and that, on a trial of that indictment after the date of the repealing Act, the State would be held to prove that the sale was in less quantities than a gallon; and therefore the judgment nisi might be made final.
    Error to tbe Circuit Court of Yalobusha co.unty. Hon. William Cothran, judge.
    A correct abstract of tbe case will be found in tbe argument of counsel for plaintiff in error.
    
      John W. 0. Watson, for plaintiff in error.
    By an Act approved March 2, 1854, tbe board of police of Yalobusha county was prohibited from granting license to any .person to sell vinous and spirituous liquors in tbe town of Grenada, or at any place within three miles thereof; and it was further enacted “that it shall not be lawful for any person or persons to sell vinous or spirituous liquors in the town of Grenada, or within three miles of the corporate limits of said town, in any quantity whatsoeverprovided that it might be sold for religious and sacramental purposes, &c. Acts, 1854, p. 423, ch. 206.
    On the 5th of May, 1859, the defendant was indicted for selling, in the said town of Grenada, vinous and spirituous liquors in violation of the said statute.
    There are two counts in the indictment, and each one charges in general terms, that the defendant sold, in the said town of Grenada, vinous and spirituous liquors in violation of the said Act approved March 2, 1854.
    It is not charged in this indictment, nor does it in any way appear therefrom, that the defendant sold liquors “ in less quantities than one.gallon."
    
    On this indictment defendant was arrested, and thereupon he entered into a recognizance with security to appear and answer the same; and, failing to appear, a forfeiture and judgment nisi was taken against him and his securities, November 7,1859. On this judgment nisi a scire facias -issued, returnable to the spring term of the court, 1860. To this scire facias there was a demurrer and also a plea.
    In January, 1860, however, an Act was passed to repeal, and which did repeal, said Act of March 2,1854, to prohibit the sale of liquors as aforesaid; which repealing Act contained a proviso excluding from its operation any offender or offenders who had violated the said Act of March 2,1854, by selling liquors “ in less quantities than one gallon.” See Sess. Acts, 1860, p. 314, ch. 272.
    Long after the passage 'of said repealing Act judgment final was entered against defendant and his securities on his said recognizance, and from this j udgment the case is brought to this court by writ of error.
    It is submitted that the case of the defendant is not included in the proviso aforesaid. This proviso could only include cases in which the indictment charged the selling of liquors “ in less quantities than one gallon,” or in which the indictment specifically stated the quantity sold, and which quantity was less than one gallon, as that defendant had sold liquors, to wit, one pint, or three quarts, or some other designated quantity which was less than one' gallon.
    Under this indictment a party having the right to sell liquor by tbe gallon, or in greater quantities, but not having the right to sell in less quantities, certainly could not be convicted. In such a case a demurrer to the indictment would be sustained. An indictment for an offence, to be good, must contain “ those necessary circumstances that concur to ascertain the fact and its nature.” 2 Hale, 169. An indictment must charge explicitly all that is essential to constitute the offence. It cannot be aided by intendments, but must positively and explicitly state what the defendant is called upon to answer.
    The case, then, not being embraced by the proviso in the repealing Act in the premises, the judgment final on the recognizance was entered when there was no law authorizing the proceeding, and when the court had no jurisdiction to proceed farther against the-defendant, either on the indictment or his recognizance. It had then become the duty of the court to dismiss as well the recognizance as the indictment, even though no plea had been put in defence made by defendant. Lunning v. The State, 9 Ind. R. 309. “Where a penalty is incurred under a statute, it must be recovered while the statute is in force; and when the statute is repealed, penalties incurred under it, though before the repeal, cannot be recovered.” 1 Stewart; Lewis v. Foster, 1 N. H. R. 61; Faton v. Graham, 11 111. R. 619.
    Where proceedings had been had in Pennsylvania, under certain laws, for the assessment of damages for opening streets in Pittsburg, and report filed, but no final judgment, and the said laws were then repealed, as the effect of this repeal the court held, “that these proceedings being incomplete, and in fieri, were arrested as with a touch of a torpedo; and the court, and those vested with authority in the subject-matter, could proceed no farther under those laws.” 7 Barr, 173, 174. In Stover v. Lmwell, 1 Watts, 258, quoted in 7 Barr, 174, the same principle is thus stated: “ If the proceedings were imperfect, when the Act under which it was begun expired, what has been done since is simply void, and needs no reversal.”
    In the case of Yeaton and' others v. The United States, 5 Oranch, 281, the principle now relied upon is thus clearly stated: “ It has long been settled on general principles that after the expiration or repeal of a law no penalty can be enforced, nor punishment infiicted, for violations of the law committed whilst it was in force, unless some special provision be made for that purpose by statute.”
    
      T. JWharton, attorney-general, contra.
   Smith, O. J.,

delivered tbe opinion of tbe court:

This was a proceeding by scire facias upon a forfeited recognizance.

It appears that the plaintiff in error was indicted, at the May term of the Circuit Court of Yalobusha county, for vending spirituous liquors, in violation of the Act approved March 2, 1854, in relation to the sale of vinous or spirituous liquors in the town of Grenada in said county. The said Act prohibits the sale of vinous or spirituous liquors in any quantity whatever in the town of Grenada, or within three miles of the limits of the corporation.

The indictment contained two counts, in each of which it is charged, in general terms, that the defendant sold vinous and spirituous liquors in violation of the Act, without any averment as to the quantity of tbe liquors sold, whether in quantities of less or more than one gallon.

The defendant having been arrested under said indictment, entered into a recognizance with surety to appear and answer the same; and failing to appear, a forfeiture and judgment nisi was taken against him and bis sureties, on the 7th of November, 1859. A scire facias was issued upon this judgment, returnable to the May term of the court in 1860.

Subsequent to the entry of the judgment nisi, that is, on the 24th of January, 1860, the Act above referred to was repealed; but with a proviso declaring that the repealing Act “should not be so construed as to release or discharge from prosecution and punishment any offender or offenders who bad violated tbe Act intended to be repealed, by selling vinous or spirituous liquors in less quantities than one gallon,” &c. Acts, 1860, p. 314.

At tbe return-term of tbe scire facias tbe defendant demurred, and, upon tbe overruling of tbe demurrer, be filed bis pleas to tbe scire facias, which, being adjudged insufficient, a judgment final was entered against him and bis sureties.

It is contended, in support of the exception to tbe judgment, that, as tbe indictment does not charge an illegal sale of vinous or spirituous liquors in quantities less than one gallon, tbe defendant is not included in tbe proviso of tbe Act repealing tbe Act under wbicb tbe indictment was found. And as tbe pending indictment is not a valid charge for any offence in respect to wbicb tbe penalties incurred under tbe Act of tbe 2d of March, 1854, were'intended to be saved by tbe repealing Act, the defendant could not legally be convicted of any offence provided for by any existing law. Hence, as it is assumed that tbe effect of tbe repealing Act was to absolve tbe defendant from any penalty incurred under -the Act repealed, tbe scire facias should have been dismissed.

It appears to be well settled that, after tbe expiration or repeal of a law, no penalty can be enforced nor punishment inflicted for violations of tbe law committed whilst it was in force, unless some special provision be made for that purpose by statute; and that penalties incurred under a statute must be collected before, and cannot be collected after, tbe repeal of such statute. Yeaton et al. v. United States, 5 Cranch, 281; Stone v. Sumrall, 1 Watts, 258; Lewis v. Foster, 1 N. H. R. 61; 7 Barr, 173; 9 Ind. R. 309.

And it may be conceded that tbe indictment set out in tbe record, wbicb charges generally tbe illegal sale of vinous and spirituous liquors, without specifying tbe quantity sold, would be invalid as a charge under a statute declaring it to be unlawful for any one to sell such liquors in less quantities than one gallon; but it does not follow, under tbe circumstances presented by tbe record, that it is defective, and therefore obnoxious to demurrer.

It is not pretended that the indictment here, when returned into court by the grand jury, was invalid because it did not allege that the quantity of liquor averred to have been sold by the defendant was less than one gallon. Proof of the sale of vinous or spirituous liquors in any quantity whatever, by the defendant in the town of Grenada, or within three miles of the limits of the corporation, would have sustained the indictment. It was, when returned, valid. It was tbe manifest and expressed intention of the Legislature not to relieve against every violation of tbe Act of the 2d March, 1854, but only as to those infractions which had been committed by a sale of liquor in quantities of one gallon and upwards. Hence the only logical or sensible effect which can be ascribed to the repealing Act is to render the general charges in the indictment specific as to the quantity of liquor alleged to have been sold, and to limit the inquiries of the jury and the court to the fact whether the defendant had not been guilty of selling liquors in quantities less than one gallon. Hence, if, upon the trial, it should appear that, although the proof might show that the defendant had sold liquor in violation of the Act of 1854, unless it should also be proved that he had sold such liquor in less quantities than a gallon, he would be acquitted. On the other hand, if it were proved that the defendant had violated said Act by selling liquor in less quantity than one gallon, he should be convicted.

By giving this effect to the repealing Act, no possible injury could arise to parties indicted, before its adoption, under the Act of 1854. But, if we assented to the position, assumed by counsel, that the legal effect of the former Act was to render invalid all indictments then pending for violations of the latter, the unmistakable intention of the Legislature would be defeated.

Judgment affirmed.  