¶1 At the time when the offence was committed, larceny was punishable with whipping, imprisonment and fine; one or all, — State v. Kearzey, ante 481. Our Statute of 1866 ’7, chap. 82, (February 25, 1867,) punishes larceny of a mule, &c., with death. And now it is insisted that this defendant cannot be punished at all; not under the statute of 1866-’7, because the offence was committed prior thereto; and not under the old law, because it is repealed by the new.
¶2 It is true that the defendant cannot be punished under a law wffiich was not in existence at the time when the offence was committed, because that law would be ex post facto, unless where it¿ lessens the punishment. It is equally true that, where a new law expressly or impliedly repeals the old law, there can be no conviction under the old law. But the Act of 1866-'7 has no application to the case before us, because it does not repeal the old law, but is only prospective in its character and is to be read thus: If any person shall hereafter steal a mule, &c., he shall suffer death. All larcenies committed before that Act are to be tried and punished without reference thereto.
¶3*545 The motion in arrest of judgment ought not to have been allowed.
¶4 There is error. Let this be certified, &c.
¶5 Per Curiam. Ordered accordingly.