The People vs. Wintermute.
to which he was entitled. If that statute was then in force, the right to challenge a juror for partiality and a condition of mind prejudicial to the substantive rights of the defendant was denied.
The present legal status of the law of 1862-3, and the place it should hold in the jurisprudence of this Territory, are the only questions we need discuss. If the law was not in force the motion in arrest should be overruled. If it was in force the judgment must be arrested.
The history of the legislation in this Territory which relates to the questions we are discussing, is this: The Act of 1862-3 was repealed by the Act of 1868-9, page 165, Sec. 799. That of 1868-9 was repealed by the Act of 1872-3, page 23, chapter 5. Section 1, of the Act of 1872-3 provides, "That chapter first of the laws of 1868-9, entitled 'An act to establish a Code of Criminal Procedure for Dakota Territory,' approved January 12th, 1869, be and the same is hereby repealed.'"
Is then the Statute of 1862-3 revived by repealing that of 1868-9, which repealed the former?
The principle of law, that the repeal of the repealing act revives the statute originally repealed, has been too often adjudicated and the principle is too well established to require elaboration or a lengthy citation of authorities.*[1]
Blackstone, says: (Vol. 1, page 90) "If a statute that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose." The same rule is laid down in Patter's Dwarris on Statutes, 159; in Tattle v. Gimwood, 3 Bing., 493; in Commonwealth v. Churchill, 2 Met., 118. This general principle may be found almost anywhere where the subject is discussed, and was not denied, as we understand, by the counsel who represented the People in the argument of this case.
Vol. i.—10.
- ↑ Since this opinion was announced this rule has been abrogated by section 2132, Civil Code, which provides: "Whenever any act of the Legislative Assembly is repealed, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided.
