People v. Tisdale

Sharpstein, J.: On the 6th day of May, 1880, an information for felony was presented and filed in the Superior Court of Colusa County, by which the defendants are charged with having, on the 22nd day of December, 1879, cut, broken, and injured a levee and embankment erected by Reclamation District No. 108. The information was demurred to by the defendants on several grounds, and the demurrer was sustained by the Court; and from the judgment this appeal is taken.

The main ground upon which the counsel for the respondents relies, in support of the judgment, is, that the law which made the acts which the defendants are alleged to have committed a felony was repealed before this information was presented. The section (607) of the Penal Code by which the acts specified were made a felony was amended by an act approved April 12th, 1880, in several particulars, the most important of which was, so far as this case is concerned, a reduction of the offense from a felony to a misdemeanor, and of the punishment from a [106]fine not exceeding $1,000 or imprisonment in the State prison not exceeding two years, or by both, to a fine not less than $100 nor more than $1,000, or by imprisonment in the county jail not exceeding two years, or by both. The punishment prescribed by the original section is not necessarily reduced by the amendment. Under the original section, the Court might impose a lighter fine than it is permitted to under the law as amended. We, however, attach no importance to that circumstance. The amendment in this case is of such a character as to operate under article iv, § 24, as a repeal of the former statute. The defendants are not charged with a violation of the law as it now stands. They are not charged with a misdemeanor under the present, but with a felony under the late, statute. The question whether an information under the statute now in force could be sustained does not arise in this case. The real and only question is, whether an information presented after the repeal of a law, which required that a person who violated it should be preceded against by indictment, can be sustained for an offense committed before-the repeal. Were it not for § 329 of the Political Code, we should answer this question in the negative, without hesitation. That section read as follows: “ The repeal of, any law creating a "criminal offense does not constitute a bar to the indictment and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment and punishment is expressly declared in the repealing act.”