Mullen v. People

Mr. Justice "Waleek delivered tbe opinion of tbe Court. It is insisted t.bat tbe court erred in its instruction to tbe jury. On behalf of the prosecution, the court gave an instruction, that if the jury found the defendant guilty, they should fix the term of his imprisonment, in the penitentiary, at a period of not less than one year, and might extend it to the period of his life. It is insisted that the instruction is erroneous, because the act of 1845, R. S. 156, authorizes the confinement of persons convicted of manslaughter, for a term less than one year. It is yivged that the act of 1859 (Sess. Laws, 125,) does not repeal this provision of the former act. The latter act provides, that upon conviction, the jury shall, in their verdict, fix the time which the party shall be confined in the penitentiary, which shall be for his natural life, or any number of years. This act contains no express repealing elause. Rut the latter act is comprehensive, and embraces all that is embraced by the 29rh section of the criminal code. The provisions of the act of 1859 are repugnant to the provisions of the former act, inasmuch as it requires the term to be for life, or a number of years, whilst the former act authorized it to be fixed for any period not exceeding eight years. Under the original act, a jury had the right to fix the time at lessthan one year, but under the act of 1859,. it at least must be for one year. In so far as the acts are repugnant, the last expression of the will of the General Assembly must prevail. Instead of this instruction being prejudicial to plaintiff in error, it was certainly as favorable as he could ask, and it may be more than he had a right to demand under the statute. The judgment of the court below is affirmed. Judgment affirmed.