Keller v. State

Tuck, J., delivered the opinion of this court. It appears that, on the last day of the session of 1858, the Legislature passed an act, “to regulate the issuing of licenses to ordinary keepers and traders,” (ch¡ 414,) by which the acts under which this indictment was found and the appellant convicted in the court below, were repealed» This law had not been passed when the cause was argued, and was not brought to the notice of the court until after the judgment had been affirmed, when a motion was made, within the term, to correct the ruling of the court, and enter a judgment of reversal. The question, now submitted, must be disposed of as if the act of 1858 had been passed before the judgment was affirmed. If tiie record is properly before us the motion must be granted.

It is well settled, that a party cannot be convicted, after the law under which he may be prosecuted lias been repealed, although the offence may have been committed before the repeal. Dwarris, 670. 1 Kent, 465. State use of Wash. Co., vs. Balto. & Ohio Rail Road Co., 12 G. & J., 399 . ³²⁶ The same principle applies where the law is repealed, or expires pending an appeal on a writ of error from the judgment of an inferior court.

It has frequently been recognized in admiralty causes, where property was seized and condemned* on the ground that the repeal of the law before the decision in the court above removed the penalty, and that the court in disposing of the appeal or writ of error, must decide according to existing laws at the time of the final judgment. 1 Cranch, 103 . 5 Cranch, 281 , 6 Cranch, 203 . 3 Peters, 57. Ch. J. Marshall states the doctrine generally* and not as applicable only to condemnations in admiralty. There seems to be no reason for saying, that it shall not govern in other cases of penalty or fine, when pending causes are not excepted in the repealing act.

And we may consider that the Court of Appeals so regarded this doctrine, for in the case of State use of Washington County, vs. The Rail Road Company, 12 G. & J., 437 , where the defendant claimed the benefit of an act of Assembly releasing a penalty, the court relied upon what was said in 5 Cranch, 283 , viz: “The court is therefore of opinion, that the cause is to be considered as if no sentence had been pronounced ; and if no sentence had been pronounced, it has been long settled on general principles, that 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 judgment in a criminal cause cannot be considered as final and conclusive to every intent, notwithstanding the removal of the record to a superior court. If this were so, there would be no use in taking the appeal or suing out a writ of error. To be sure it does not operate to stay the execution of the sentence, if the State chooses to proceed on the judgment; but, when decided in favor of the accused, the reversal will operate as far as possible for his relief. If he be undergoing punishment according to the sentence pronounced he will be discharged, as in the cases of Black, 2 Md. Rep., 376 , and Cochrane, 6 Md. Rep., 400 .

And so if the law be repealed, pending the appeal or writ of error, the judgment will be reversed, because the decision must be in accordance with the ³²⁷ law at the time of final judgment. And recently, in the case of The State use of Balto. City, vs. Norwood, et al., at this term, (Ante, 195,) this court recognized and adopted the language of Ch. J. Marshall, in 1 Cranch, 110 , to the effect, that, “if it he necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” See, also, 3 Howard, 534 , where the Chief Justice said, that “the repeal of a law imposing a penalt3r is of itself a