Ex parte Gutierrez

By Wallace, C. J.: 'In 1872 the petitioner was convicted of the offense of petit larceny—a misdemeanor. On the 1st day of January, 1873, the present Penal Code went into effect, containing a provision, in substance, that any person convicted a second time of the crime of petit larceny shall be deemed guilty of a felony, and punished by imprisonment in the State Prison. The commitment here sets forth, in the usual form, that the prisoner committed the offense of petit larceny on the 13th of January, 1873, and, also, that he had been previously convicted of the like offense, and thereupon directs that he be held to answer for felony. It was suggested, rather than argued for the prisoner, that it was not the intention of the Penal Code to take into account, for this purpose, a conviction of petit larceny, occurring anterior to the time at which the Code itself went into effect. There is, however, nothing to be found in the phraseology of the Act which can be brought to the sojijiort of this view. Those who enacted [431]this law have certainly made no distinction, upon its face, between convictions suffered before and like convictions suffered after the 1st day of January, 1873. If or is there any principle of interpretation which will avail to restrain the general words of the statute for the benefit of the prisoner in this instance. The established rule of the common law undoubtedly was that statutes of the character of the one now under consideration should receive a strict construction in favor of him upon whom a penalty was to be inflicted; but this rule has been abrogated by the Code, which has constituted itself, in this respect, its own interpreter. Section four of the Penal Code is as follows: “ The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are -to be construed according to the fair import of their terms, with a view to effect its objects, and to promote justice.”

1. I have remarked already that there is nothing tb be found in the terms or language employed in the Act which distinguishes between a first conviction of petit larceny had anterior to January 1st, 1873, and such an one had after that day. The object of the Code, evident in this respect, was to protect society from the further depredations of an abandoned class of criminals infesting the cities and larger towns in the State, whose ordinary avocation is larceny, and whose severest punishment has heretofore been confinement in idleness and for inconsiderable periods of time in the County Jail, escaping, of course, the graver though well deserved consequences ensuing upon a conviction of a felony. ÍTeither the purposes of justice nor a consideration of the object to be effected will, in my opinion, justify me in giving the Code the interpretation in this respect claimed by the prisoner.