¶1delivered the opinion of the court.
¶2From the above statement, it wiil be seen that the important question *152in this case, arises from the instruction which the court gave to the jury.
¶3This question involves the fact, whether the common law concerning the offence of riot is in force within this State or not.
¶4The legislature of this State at their session in 1824 & ’6, in 1834 & ’6, and in 1844 & ’5, have enacted general provisions upon the subject of riots, routs, &c. And this indictment against Levi Smith and others, is found under the provisions of the act concerning crimes and punishments. Art. 7, sec. 6, of 1844 & ’5.
¶5This section does not declare that the act done against its provisions shall be a riot; it does not name the offence otherwise than by stating, that persons guilty under the section shall be guilty of a “misdemeanor, and shall be punished by imprisonment in' a county jail'not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.” Yet it is obvious that the subject of riots, routs and unlawful assemblies, was before the minds of the legislators when they were framing this statute. The subject matter has been acted upon by our law-makers. If they had declared that persons guilty of a violation of the provisions of the 6th section of the 7th art. of the aforesaid act of crimes and punishments, passed in 1844 & 5, should be deemed guilty of a riot, there would have been no room for doubting that the common law concerning riots would thereby have been superseded. Nor do I think the omission to call the offence a “riot4” can make much difference, since the whole subject matter of the common law offence has been acted upon by our legislature.
¶6We have declared that “punishments, by virtue of the common Jaw, shall in no wise be ether than by fine and imprisonment, and such fine shall not exceed one hundred dollars, and such imprisonment shall not exceed two months.” See digest of 1845, chap. 100, page 693.
¶7A subsequent statute, revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must on the principles of law, as well as in reason and common sense, operate to repeal the former. A statute is impliedly repealed by a subsequent one revising the whole subject ¡matter of the first; and in case of a statute revising the common law, the implication is equally as strong. See Butler vs. King, 12 Mass. Rep. 537; Nicholas vs. Squire, 5 Peck. 168; 10th Pickering, 37; Commonwealth vs. Cooley, 11 Pickering, 350; Commonwealth vs. Marshall and others.
¶8I come to the conclusion, therefore, that whenever the legislature has *153made general provisions upon a specific criminal mattter, these provisions are in lieu of the common law.
¶9Let us now apply the principles declared above to the present case.
¶10Here is an indictment under our statute punishing for a misdemeanor. The statute expressly specifies the offence. Its punishment is much greater than what is allowed by our legislature to any mere common law offence.
¶11To justify a conviction therefore upon this indictment, will require more than proof of a common law riot. That is, proof of such acts as would constitute a riot at common law, will not be sufficient to convict under this indictment. It requires proof of an “unlawful act,” that is the act done, must only be done in a riotous, routous and unlawful manner, with force and violence, but must be an “unlawful act.”
¶12The instruction then which the court gave to the jury in this case and which is set forth in the above statement, as marked number 1, is erroneous. It defines the common law riot; yet tells the jury if they convict the defendants, they must inflict the punishment for the statutory offence, not the punishment for the common law only.
¶13We deem it unnecessary to notice the instructions prayed for by the defendants; if the proof will not support the charge in the indictment that is the statutory offence. We hold that the defendants in that event should be acquitted, for these reasons. It is the opinion of this court that the judgment of the criminal court should be reversed, and this cause remanded, which is done accordingly.