majority">BYRD, J.

This is an indictment against the prisoner for the murder of Annice, “alias Annice Bethea, a female slave, by strangling or choking her with a string, cord, rope, or suspender, or by throwing her into a well.” The record shows that the offense was committed in February, 1865, and that the prisoner and the deceased were both slaves at that time.

The only distinction between this case, and the cases of George (a freedman) v. The State, and Burt (a freedman) v. The State, is, that the offenses in those cases were committed against white persons, and in this case the slayer and the.' 'in were slaves, and equals in statm.

The jury find, by their verdict, that the prisoner was guilty of murder in the first degree. This is one of the highest crimes known to the law, and section 3812 punishes it with death, and so did the common law. Murder is the same offense by the Code, as at common law. Murder may be accurately defined to be “ a homicide, by an act committed from a depraved mind fully bent on evil, the result of which is the death of a human being within a year and a day from the time of its commission;” or, in other words, it is the killing of one human being by another, with malice aforethought, express or implied. The Code does not define the crime of murder: we have to lookto the common law alone for its definition. It must, therefore, mean the same thing in the Code that it. does at common law. The language of the Code is, “ Every slave, who is guilty of murder, must, on conviction, suffer death.” It does not provide that one slave may commit murder upon another; but this was so at common law, and resulted from the very definition of the crime. The offense, then, of one slave killing another with malice aforethought, is murder at common law; and there is no such offense by statute, for the Code adopts as to the •slave the common-law offense; and as to the punishment, *669tbe Code also adopts the common-law punishment of death.

Now, in this case, there is no diversity of status of the ^ayer and the slain, to make it even plausible to hold that the change of the status of the slayer should relieve him from the punishment affixed by statute and common law, or to hold that the status is so far of the essence of the crime and the punishment, when he kills a,person of another and a higher status, as to reheve him from the latter. Here, both were slaves and human beings; and the offense and the punishment being the same at common law and by the Code, and the status of the slayer and the slain being the same, I am of opinion, that the prisoner is liable to be punished for the offense, and that such punishment can be inflicted upon a conviction under a common-law indictment, by averring that the prisoner, “then and there being a slave, feloniously did kill Annice, a slave,” &c., setting out the specific offense according to the common law.

The punishment prescribed by sections 3080, 3081, and 3082 of the Code, were positively prohibited by section 3305 from being inflicted on slaves, at the time this offense was committed. Therefore, those sections cannot be applied to offenses committed by slaves; and if a slave was indicted at common law for an offense, and found guilty, the common-law punishment alone could be inflicted. For how could that punishment, which was prohibited by law from being applicable to slaves, for offenses committed while slaves, ever be made applicable to them when they became free, except for offenses committed by them after they became free. Such application would be in violation of section 3305 of the Code, and also ex post facto ; if not in mitigation. But the prohibition of section 3305 of the Code is explicit, and forever forbids the infliction of the punishment prescribed by sections 3080, 3081, and 3082, at the time the offense was committed; and the common-law punishment being the only one then in force, it must be inflicted, or none. Even the repeal of section 3305, before the trial, but after the offense, would not make sections 3080, 3081, and 3082 applicable; because section 3305 was prohibitory at the time of the offense committed. But the *670offense and the punishment being the same at common law and by section 3312 of the Code, the common-law punishment could be inflicted. — See 1 Bish. Crim. Law, from § 90 to § 108, inclusive. Therefore, the fact that slavery has been abolished, and thereby said sections are made applicable to freedmen, for offenses committed by them as freedmen, does not reheve them from the punishment prescribed for offenses committed by them while slaves.

But suppose the above is not correct; yet, sections 3080, 3081, and 3082 are in mitigation of the common-law penalty ; and the court below seems to have been of opinion that those punishments could be inflicted, because death was one, and penitentiary confinement the other, and that that was in mitigation of the punishment under section 3312 of the Code; and being so, the jury could inflict either, under a familiar principle of the common law, that where the statute mitigates a common-law or statutory punishment, the mitigated punishment could be inflicted, where the offense was committed before the passage of the statute, and it was a common-law offense; and there are authorities directly to the point. If the punishment is mitigated, it is held not to be ex postfacto.—1 Bish. C. L., § 108; Story on Const. § 1345; Commonwealth v. Mott, 21 Pick. 472, 501; Strong v. The State, 1 Black. 193; The State v. Williams, 2 Rich. 418; Clarke v. The State, 23 Miss. 261; Dawson v. The State, 6 Texas, 347. So that, whether the common-law punishment could be inflicted or not, it appears that if the abolition of slavery made sections 3080, 3081 and 3082 a change of punishment, which is' applicable to offenses committed by freedmen who were slaves when the offenses were committed; yet this punishment, being in mitigation, and not in aggravation, can be inflicted where the offense has not been repealed. The'abolition of slavery certainly does not operate a repeal of the offense of murder, even to the extent of relieving a slave from punishment for an offense committed while a slave. Bepeals by implication are not favored in law; and yet, in this case, the repeal is implied, not from a repugnant statute, but from a change of status.—13 Pick. 343, 348; 2 ib. 172; 24 ib. 296; 20 ib. 409; 5 Hill, (N. Y.) 221; Wyman v. Campbell, *6716 Porter, 217; 3 Gill, 138; 9 Cow. 437; 1 Bish. C. L. § 75; Rex v. Paine, 1 East’s P. C. 5; Jock v. Miller, 3 Stew. & Por. 13; 3 Greene, (Iowa,) 329.

Punishment is not of tbe essence of the offense; it is in tbe nature of the remedy, and, when mitigated, is not in violation of the constitutional provision against ex-post-fad,o laws. — Bishop, Or. L. §§ 103-108; Story on Con. § 1345. If the Code is taken as a system, and to be construed as such as to freedmen after their liberation, then, where it was by the action of Governor Parsons’ proclamation put in force, except the slave laws, a part of that system being sections 12 and 14 was also put in force as a part of that system as to freedmen; and those saving clauses or sections should be held to apply to crimes committed during the war, or before the slaves were free, and they became free before the issuance of the proclamation; for, as to the freedmen or slaves, sections 3080, 3081, and 3082, were never in force as to them until the proclamation was issued. Jeffries v. The State, at this term.

The common-law rule was, that, if the statute contained no prohibitory clause, or negative, express or implied, the State could proceed, either under the statute, or at common law, where the offense was one at common law, and the statute only changed the punishment. — 1 Bish. C. L. §§ 91, 93, 77, 88, and authorities cited by him.

My opinions on these questions are given at large in the case of Burt (a freedman) v. The State, and the authorities there cited. But my brethren not concurring in the application of the principles held by me to this case, in conformity to their opinion let an entry be made, reversing the judgment, and discharging the prisoner from custody, as in the case of Burt v. The State, at the present term.

JUDGE, J.

The evidence upon which the prisoner was convicted, was entirely circumstantial; and a charge was requested and refused, as to the measure of conviction necessary to be produced on the minds of the jury by this species of evidence, before they could find the prisoner guilty; and a question also arises upon defects in the record, which might be supplied by a certiorari. But the *672view taken of tbe case by the Chief-Justice and myself, renders it unnecessary to pass upon any of these questions.

At the time of the commission of the offense, the prisoner was a slave, and the person slain was a slave. These facts were averred in the indictment, and were sustained by the proof. We may concede that slavery was known to the common law. We do concede that the offense charged in this case was murder at the common law, and this without regard to the status of the slayer or the slain ; and we also concede that the punishment of murder, at the common law, was death. A statute of this State, in force when the offense was committed, may be read as follows : “ Every slave, who is guilty of murder, shall, on conviction, suffer death.” — Code, § 3312. And we may concede, without affecting the result, though we do not assert the proposition, .that this statute was merely declaratory of the common law. Yet, notwithstanding these concessions, it is incontrovertibly true that, at the time of the commission of the offense charged, and for a long period prior thereto, none but slaves, as slaves, could be punished, in this State, unconditionally with death, as at the common law, for murder. How, and why was this so ? It was not in virtue alone of section 3312 of the Code, above quoted; it was also by virtue of sections 3080, 3081, and 3082, which provide in substance as follows :

1. A definition of murder in the first degree, and a declaration that any person guilty of murder in the first degree, must, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury trying the case.

2. A declaration that every homicide, committed under such circumstances as constituted murder at the common law, and which is not murder in the first degree, is murder in the second degree; and that, on conviction for this offense, the offender must be imprisoned in the penitentiary,' for not less than ten years.

3. That, upon any indictment for murder, the jury finding the offender guilty, must ascertain by their verdict whether it is murder in the first or second degree; and that *673sentence must be pronounced in accordance with tbe finding of a jury, in all cases, even tbougb tbe prisoner, upon arraignment, confesses bis guilt.

These sections of tbe Code never applied to slaves; were prohibited from being thus applied, by section 8805; but, from tbe date of their enactment, they applied to all persons in tbe State, of whatever class, except slaves; and since tbe destruction of slavery, they apply to all persons in tbe State of every class. It was decided by this court, unanimously, in tbe case of Eliza v. The State, at tbe present term, that they became applicable to freedmen, eo in-stanti, on their becoming such; but they cannot be allowed to prescribe tbe punishment of prior offenses, for obvious reasons, hereafter noticed.

Thus it very clearly appears that, by the- statutes of Alabama, there was but one class of persons in tbe State, before tbe abolition of slavery, who could be punished unconditionally with death, as at tbe common law, for murder; and that was the class known as slaves.

Now, what effect did tbe abolition of slavery have on this legislation of tbe State relating to tbe punishment of murder ? In tbe case of George v. The State, at tbe present term, Justice Byed not sitting, this court held, that all tbe penal statutes of tbe State, applicable to slaves exclusively, have been abrogated by tbe destruction of tbe institution, and by tbe consequent changes made in tbe fundamental law, which created a repugnancy between it and tbe statutes, and between tbe statutes and tbe genius and policy of tbe State. This opinion has not been directly assailed, tbougb my brother Byed intimated bis disapprobation of it, in bis dissenting opinion in Burt v. The State, at tbe present term. It is believed that tbe decision in George v. The State is founded upon unassailable argument and authority.

This being tbe case, what has become of section 3312 of tbe Code, which declares, that “ every slave, who is guilty of murder, shall, on conviction, suffer death ?” It was abrogated with tbe other statutes of tbe slave code.

We are willing to concede that, when a statute is declaratory merely of tbe common law, and is simply repealed, *674tbe repeal does not affect the common law: that remains in force, if there be no other enactment, at the time of' the repeal, which supersedes the common law in the particular of the statute ; and if such was this case, and section 3312 was merely declaratory of the common law, there would be no difficulty in remanding the cause for another trial. But such is not this case. On the abrogation of section 3312, the provisions of the Code dividing murder into degrees, and providing punishment for each degree of the offense, became of universal application, and as universally excluded, by completely superseding, the common-law punishment for murder. By what process, then, can these provisions of the Code be thrust aside, and the common-law punishment for murder, unconditional death, be erected in their stead, for the trial of a particular case, or of a particular class of cases ? The Code punishment, and the common-law punishment, both cannot exist together, for they are in direct repugnancy ; and if it is competent for the legislature to change by statute any common-law rule, (a thing never yet doubted,) surely, the common-law punishment for murder has been 'changed in this State, by the provisions of the Code above referred to.

The question is precisely the same as if the legislature had abolished slavery, repealed section 3312 of the Code, with no saving clause as to offenses committed under it prior to the repeal, and at the same time, and in the same act, had made the sections of the Code relating to the punishment of murder, applicable to freedmen.

Should this cause be remanded, then, under what law could the prisoner be punished? Not under the statute which was in force against him as a slave, when the offense was committed; for he is no longer a slave, and that statute has been abrogated, with no saving proviso as to offenses committed under it while it was in force. Not under the common law, for that punishment for murder has been superseded by the Code. Not under the Code, for that had no application to him when the offense was committed ; and he cannot be punished under an ex-post-facto law, which would not only violate the constitution of the United States, but also the 8th section of the bill of rights *675of this State, which declares, that “no person shall be punished, but in virtue of a law_£stablisbed and promulgated prior to the commission of the offense.” It results, then, that he could be punished under no law, unless, as we think, the court trying him should resort to legislation, under the mask of judicial construction.—See Burt v. The State, at the present term.

It is not pleasant to the Chief-Justice and myself to be forced to this conclusion; but we come to it under the guidance of the stern and inflexible rules of the law; and thus guided and controlled, we are not at liberty to announce a different result, regardless of the character of the case, or of whom it may relieve from punishment.

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