The opinion of the Court was delivered by

The indictment charges a statutory offense, and, to that end, is in perfect conformity with the established precedents.

At the time of the conviction and sentence the only statute of force in this State prescribing a punishment for the stealing of a cow over the value of twenty dollars, thereby changing the offense from larceny at common law, was that of 1789, 5 Stat., 139. It *3was repealed by the Act of 1866, 13 Stat., 407, so far as its provisions were inconsistent with those of the latter, and, therefore, where the charge was the stealing of a domesticated animal below the value of twenty dollars, the offense was only a misdemeanor, punishable as prescribed by the Act. — State vs. Thomas, 14 Rich., 164. The Act of 1789, so far as it concerned the stealing of a cow over the said value, stood unrepealed. The fact of its repeal since, by the Act of 1872, General Statutes, could not exonerate the defendant from punishment under that of 1789, for, independent of its provisions, 6th Section, page 700, “ that it shall not affect any suit or prosecution pending at the time of the repeal for an offense committed under the Act repealed,” judgment having been pronounced before the repeal, the penalties of á law, though repealed, may still be enforced. — State vs. Addington, 2 Bail., 516.

The punishment under the Act of 1789 subjected the offender to a fine or penalty of £10 for each and every cow for the stealing of which he may be convicted, and in case such offender is not able to pay such fine or penalty, to be publicly whipped and personally receive not exceeding thirty-nine lashes. Punishment of crimes and offenses by whipping is abolished, (Act No. 41, 14 St. 87-160,) and, therefore, in ease of the inability of- the offender to pay the £10, he cannot be subjected to the corporal infliction. The punishment, it would seem, by the terms of the Act of 1789, was not an alternative one submitted to the preference either of the Court or the offender. The punishment was the fine, and it was only in the event of want of ability to meet it that the party convicted, in the words of the Act, “shall be subject to be publickly whipped.” If, therefore, he is not able to respond to the fine, he cannot be held liable to the corporal punishment provided in the place of its payment. We have not been favored with any report from the presiding Judge, but we are to infer that his sentence “ to hard labor in the Penitentiary for one year,” was on the assumption that the offense with which the defendant was charged, and for which the conviction followed, was for grand larceny at common law. In this he was mistaken, for the Act of 1789, so far as it relates to the stealing of cows above the value of twenty dollars, was at the time in full force.

The motion in arrest of judgment is granted.