66 Mass. 237 | Mass. | 1853
This was an indictment charging the defendant with arson in burning a dwelling-house in the night time. It was charged in the indictment, and appeared by the evidence at the trial, that this offence was committed on the night of May 12, 1852, the trial having taken place in June. Between the time of the commission of the offence and the time of trial, the St. of 1852, c. 259, was passed, changing the punishment in three cases, — treason, rape, and arson, — substituting for the penalty of death, that of imprisonment in the state prison for life. At the trial, the counsel for the defendant moved the court to direct the jury that the defendant could not be convicted and sentenced; not under the revised statutes, which inflicted the punishment of death, because it was in effect repealed before the trial; and not under the St. of 1852, because it was not in force, and could not be violated, when the act of arson was committed. The court declined so to direct the jury, and thereupon the defendant was convicted. The defendant took exceptions, which have now been argued.
The court are of opinion that this direction was right. The provision of the Rev. Sts. c. 126, § 1, imposing the punishment of death for arson, was not in terms repealed by the St. 1852, c. 259. They are both affirmative; each affixes a certain, but different, penalty to the same act. Arson by the burning of a dwelling-house, in the night time, was an offence at common law, and neither statute did much more than declare the punishment. Where a subsequent act is not in terms repealed, the question, whether the prior act is repealed by implication, depends upon the point whether they are repugnant, or whether they may both well stand, and have then- proper application. If they are repugnant, the former must yield, because, the presumption being conclusive that the legislature intended and determined that the latter should take effect, the implication is necessary, that they intended to
Between these two legal enactments there is no such repugnancy. Each declares arson punishable. Two acts in pari materia, each declaring a certain act to be a crime, may well stand and be enforced at the same time. The repugnancy is in the provision for the punishment; therefore, the law declaring the punishment of death for the offence was repealed by an implication unavoidably necessary. Nor, although the act imposing the particular punishment was passed after the offence was committed, was it an ex post facto law, within the meaning of the maxim which considers such laws unjust, or contrary to the prohibition of the constitution. An ex post facto law is one which declares an act previously done, criminal and punishable, and which was not so when the act was done, or which declares a much higher punishment than existed at that time. But an act plainly mitigating the punishment of an offence is not ex post facto; on the contrary, it is an act of clemency. A law, which changes the punishment from death to imprisonment for life, is a law mitigating the punishment, and therefore not ex post facto. Commonwealth v. Mott, 21 Pick. 492; Calder v. Bull, 3 Dall. 386; 1 Kent Com. (7th ed.) 450; Story Const. § 1339.
The law, making the burning of a dwelling-house a crime punishable with death, was in force when the crime was committed; and the law fixing and mitigating the punishment was in force when the trial was had. By force of both combined the defendant is liable. This we think is not inconsistent in principle with Commonwealth v. Cooley, 10 Pick. 37 and Commonwealth v. Marshall, 11 Pick. 350; because in tne present case the whole law was not revised, but only that part of it which imposed the punishment.
A question then arises, how shall the convict before us, being a female, be sentenced, whether according to the literal terms of this last statute, viz: in the state prison, or may it be in the house of correction. The law was settled by the
In regard, therefore, to all offences, made such by the revised statutes, or by any prior law, the system was uniform and symmetrical; and though the law in terms declared that any person convicted of a specified offence should be punished in the state prison, yet, if the person convicted of one of these offences was a female, she was rightfully sentenced in the same manner, i. e. as to term of time, solitary imprisonment, and hard labor, in the common jail or house of correction.
The question, then, is, whether the like construction can be put upon a legal enactment, in precisely the same terms, passed after the revised statutes. There is no doubt that the legislature may repeal the law exempting females from imprisonment in the state prison, as well as any other law, and may require females to be so imprisoned. But the question still recurs, whether it is reasonable to presume that the legislature intended such an alteration, without some expression or some implication to that effect, other than the general words, declaring that any person, &c., shall be punished by imprisonment in the state prison, when, by the great body of the criminal law, including the revised statutes, such general words had been accompanied by an exception, exempting females from such punishment. It is the intention of the legislature, expressed in their act, expounded in reference to acts in pari materia, and other well established rules of construction, which we are to seek and carry into effect.
If the legislature intended to observe and maintain the policy of the revised statutes, exempting females from the state prison, and if we are not at liberty to hold that where they use general words, describing an offence, and making it punishable in the state prison, they do it under a belief that it is accompanied by the implied exception of females, it would follow that in every act, passed after the revised statutes, the punishment must be declared in the alternative, by considerable circumlocution, that if the party convicted is a female she shall not be sentenced to the state prison, but to the jail or house of correction; which, at least, would be attended
The court are therefore of opinion that the female before us, standing convicted of arson in burning a dwelling-house in the night time, must be sentenced to imprisonment for life, in the house of correction or common jail of this county.