ARMSTRONG, P. J.
The plaintiff in error, Oce Jones, was convicted at the November, 1911, term of the district court of Carter county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of ten years. To review the judgment of conviction he has brought this appeal. The prosecuting witness, W. R. Cypert, and the accused were near neighbors, living in Carter county, Okla. On the night of January 18, 1911, four horses and one mule were stolen from Cypert, and were later found in the Arbuclde Mountains, in a pasture used by the accused. Warren Yell and Bryant Ballew were jointly charged with the offense. They testified against the accused that on the evening of the larceny he gave them $10 each to help him move the horses up into the Arbuckle Mountains to his pasture; that he told them he would see that they did not get into trouble. The accused bought some carbolic acid at Heflin’s drug store just before the trip. This fact is testified to 'by witness Coffee and by the druggist Heflin. The three left Jones’ house on horseback, the accused riding a large, brown bay horse, the property of Yell, the other two' riding smaller horses; each horse being shod all round. They rode north to the pasture of prosecuting witness, and there found the horses and mule. The accused cut the wire fence with clippers, and they took four horses and one mule. They had some trouble catching the horses, and left one they could not get hold of. They left the field and traveled south along what the accused told his associates was the Ardmore road, for the purpose of turning people off their track and leaving the impression that the horses had gone south. After going 'some distance they doubled back on an old road, and went back north to the Arbuckle Mountains, to a pasture commonly known as “No Mans” pasture, in which the accused had been keeping
stock. It appears that this pasture is on top of the Arbuckles, and is made by adjoining landowners fencing their lands on all sides of it. No one seems to have any legitimate claim to the tract of land constituting this pasture. This is apparently a place scarcely ever visited, and practically impossible of being found except by those being very familiar with the surrounding country and its particular location. This place was reached early in the morning of January 19th, and is apparently about fifteen miles from where the horses were taken. After reaching the pasture the stock were rebranded with the carbolic acid purchased the day before at Heflin’s drug store in Lone Grove. Three or four days later, when the horses were found, there were fresh brands on them which had the appearance of having been made by acid and bore the odor of carbolic acid. There was a leather halter on the mule, which was taken off and hidden under a rock. One of the accomplices told the officers where this halter could be found, and later took the officers to this place and the halter was so found. After branding the stock the parties separated; Jones going one directiqn, Yell and Ballew in another. It appears that the horse the accused rode on the night of the larceny belonged to accomplice Yell; that he recovered the same about a month later from a brother-in-law of the accused. Yell and Ballew were arrested a short time after the larceny. The accused was not located for six or seven months, and not until he came into Ardmore and surrendered to the officers. His family, however, continued to live at Lone Grove and near the town of Dixie.
The accused entered a plea of not guilty and undertook to establish an alibi. The principal witnesses testifying thereto were two brothers, and from a reading of the record it is not surprising that the jury found against him, as the testimony of these witnesses is thoroughly impeached by the state, and their stories are most unlikely. In fact there is very little straightforward, reasonable, convincing testimony on behalf of the accused. There are many other corroborating circumstances supporting the stories told by the accomplices, entirely sufficient in our judgment to warrant the finding of the jury. With this in view this
court will not reverse this judgment, in the absence of substantial errors of law.
The only material law point raised by counsel for plaintiff in error is based on the contention that the crime was committed on the 18th of January, 1911, and that the prosecution was not begun until August 31, 1911; that during this interim the Legislature repealed the statute under which the crime was prosecuted.
The statute on which the prosecution was based reads as follows:
“Any person in this state who shall steal any horse, cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than one year nor more than ten years; provided that where the horse or horses stolen are proven to be work stock the punishment shall be not less than three years nor more than ten years. The word ‘horse’ as used in this act shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.” (Sess. Laws 1910, c. 98.)
The amendment which counsel contend repealed that statute is as follows:
“Section 1. That section 1, chapter 98, 1910, Session Laws of Oklahoma, be and the same is hereby amended to read as follows:
. “Section 1. Any person in this state who shall steal any horse, shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five years nor more than ten years; and any person in this state who shall steal any cow, or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than two ’(2) years, nor more than ten years. The word ‘horse’ as used in this act, shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.” (Sess. Laws 1911, c. 92.)
There are two reasons why this contention is not well founded, only one of which we will discuss.
Section 54 of article 5 of our Constitution is as follows:
“The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any ac
crued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.”
Section 2972, Comp. Raws 1909, provides:
“The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”
The construction of an identical statute was before the United States Supreme Court in the case of
U. S. v. Reisinger,
128 U. S. 401, 9 Sup. Ct. 100, 32 L. Ed. 480, in which the court said:
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ARMSTRONG, P. J.
The plaintiff in error, Oce Jones, was convicted at the November, 1911, term of the district court of Carter county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of ten years. To review the judgment of conviction he has brought this appeal. The prosecuting witness, W. R. Cypert, and the accused were near neighbors, living in Carter county, Okla. On the night of January 18, 1911, four horses and one mule were stolen from Cypert, and were later found in the Arbuclde Mountains, in a pasture used by the accused. Warren Yell and Bryant Ballew were jointly charged with the offense. They testified against the accused that on the evening of the larceny he gave them $10 each to help him move the horses up into the Arbuckle Mountains to his pasture; that he told them he would see that they did not get into trouble. The accused bought some carbolic acid at Heflin’s drug store just before the trip. This fact is testified to 'by witness Coffee and by the druggist Heflin. The three left Jones’ house on horseback, the accused riding a large, brown bay horse, the property of Yell, the other two' riding smaller horses; each horse being shod all round. They rode north to the pasture of prosecuting witness, and there found the horses and mule. The accused cut the wire fence with clippers, and they took four horses and one mule. They had some trouble catching the horses, and left one they could not get hold of. They left the field and traveled south along what the accused told his associates was the Ardmore road, for the purpose of turning people off their track and leaving the impression that the horses had gone south. After going 'some distance they doubled back on an old road, and went back north to the Arbuckle Mountains, to a pasture commonly known as “No Mans” pasture, in which the accused had been keeping
stock. It appears that this pasture is on top of the Arbuckles, and is made by adjoining landowners fencing their lands on all sides of it. No one seems to have any legitimate claim to the tract of land constituting this pasture. This is apparently a place scarcely ever visited, and practically impossible of being found except by those being very familiar with the surrounding country and its particular location. This place was reached early in the morning of January 19th, and is apparently about fifteen miles from where the horses were taken. After reaching the pasture the stock were rebranded with the carbolic acid purchased the day before at Heflin’s drug store in Lone Grove. Three or four days later, when the horses were found, there were fresh brands on them which had the appearance of having been made by acid and bore the odor of carbolic acid. There was a leather halter on the mule, which was taken off and hidden under a rock. One of the accomplices told the officers where this halter could be found, and later took the officers to this place and the halter was so found. After branding the stock the parties separated; Jones going one directiqn, Yell and Ballew in another. It appears that the horse the accused rode on the night of the larceny belonged to accomplice Yell; that he recovered the same about a month later from a brother-in-law of the accused. Yell and Ballew were arrested a short time after the larceny. The accused was not located for six or seven months, and not until he came into Ardmore and surrendered to the officers. His family, however, continued to live at Lone Grove and near the town of Dixie.
The accused entered a plea of not guilty and undertook to establish an alibi. The principal witnesses testifying thereto were two brothers, and from a reading of the record it is not surprising that the jury found against him, as the testimony of these witnesses is thoroughly impeached by the state, and their stories are most unlikely. In fact there is very little straightforward, reasonable, convincing testimony on behalf of the accused. There are many other corroborating circumstances supporting the stories told by the accomplices, entirely sufficient in our judgment to warrant the finding of the jury. With this in view this
court will not reverse this judgment, in the absence of substantial errors of law.
The only material law point raised by counsel for plaintiff in error is based on the contention that the crime was committed on the 18th of January, 1911, and that the prosecution was not begun until August 31, 1911; that during this interim the Legislature repealed the statute under which the crime was prosecuted.
The statute on which the prosecution was based reads as follows:
“Any person in this state who shall steal any horse, cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than one year nor more than ten years; provided that where the horse or horses stolen are proven to be work stock the punishment shall be not less than three years nor more than ten years. The word ‘horse’ as used in this act shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.” (Sess. Laws 1910, c. 98.)
The amendment which counsel contend repealed that statute is as follows:
“Section 1. That section 1, chapter 98, 1910, Session Laws of Oklahoma, be and the same is hereby amended to read as follows:
. “Section 1. Any person in this state who shall steal any horse, shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five years nor more than ten years; and any person in this state who shall steal any cow, or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than two ’(2) years, nor more than ten years. The word ‘horse’ as used in this act, shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.” (Sess. Laws 1911, c. 92.)
There are two reasons why this contention is not well founded, only one of which we will discuss.
Section 54 of article 5 of our Constitution is as follows:
“The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any ac
crued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.”
Section 2972, Comp. Raws 1909, provides:
“The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”
The construction of an identical statute was before the United States Supreme Court in the case of
U. S. v. Reisinger,
128 U. S. 401, 9 Sup. Ct. 100, 32 L. Ed. 480, in which the court said:
“It is conceded that, under the general principles of the common law, the repeal of the jjenal statute operates as a remission of all penalties for violations of it committed before its repeal, and a release from prosecution therefor after said repeal, unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution. In this case the court is of the opinion that section 13, Rev. Stat., contains such provision. It reads as follows: ‘The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.’ This section, we think, clearly excepts offenses committed before the passage of the repealing act of 1884. To show this, it is only necessary to read the act of 1884 in connection with section 13, Rev. Stat., as one act. It would then be read substantially as follows: ‘Be it enacted,’ etc., ‘that the act entitled “An act relating to claim agents and attorneys in pension cases,” approved June 20th, 1878, is hereby repealed: Provided, that said repeal shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred thereunder, and that the same shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty or liability.’ The only ground upon which the correctness of this interpretation may be doubted is that the words ‘penalty,’ ‘liability,’ and ‘forfeiture’ do not apply to crimes and the punishment therefor, such as we are now considering. We
cannot assent to this. These words have been used by the great masters of crown law and the elementary writers as synonymous with the word ‘punishment/ in connection with crimes of the highest grade. Thus, Blackstone speaks of criminal law as that ‘branch of jurisprudence which teaches of the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty.’ Alluding to the importance of this department of legal science, he says: ‘The enacting of penalties to which a whole nation shall be subject should be calmly and maturely considered.’ Referring to the unwise policy of inflicting capital punishment for certain comparatively slight offenses, he speaks of them as ‘these outrageous penalties/ and repeatedly refers to laws that inflict the ‘penalty of death.’ He refers to the other acts prescribing certain punishments for treason as ‘acts of pains and penalties.’ That the Legislature intended that this thirteenth section should apply to all offenses is shown by section 5598,- Rev. Stat., under the title of ‘Repeal Provisions/ which is as follows: ‘All offenses committed and all penalties .or forfeitures incurred under any statute embraced in said Revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect as if said repeal had not been made.’ ”
Even though this view of the law had not been enunciated by the highest court of our land, we would feel inclined to announce the doctrine ourselves, in view of the fact that in this state our criminal laws, by legislative enactment, are entitled to a liberal construction, and without doubt the legislative enactment and provision of the article of the Constitution,
supra,
were intended for this very purpose. It follows that the court committed no error in overruling the demurrer.
A careful examination of the entire record discloses no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore in all things affirmed.
DOYLE, J., concurs. FURMAN, J., absent, and not participating.