96 Ind. 243 | Ind. | 1884
A verdict was returned against the appellant finding him guilty of murder in the first degree, and affixing the punishment of death. On the 10th day of April, 1884, the court informed the appellant of the verdict that had been returned against him, and asked him if he had any cause to show why judgment should not be pronounced, and, no cause being shown, the court pronounced judgment and fixed the time for the execution on the 27th day of June, 1884. The record recites that the appellant and his counsel were present when the judgment was pronounced, and there does not appear to have been any objection to the time fixed, nor was there any agreement as to the time; the appellant simply remained silent. The time fixed for the execution was less than one hundred days'from the time judgment was pronounced, and the question is whether the action of the court fixing the time at a shorter period than one hundred days can be sustained.
The statute provides that “ The punishment of death, prescribed by law, must be inflicted by hanging by the neck until the person is dead, at such time, not less than one hundred days after conviction, as the court may adjudge.” This provision is in terms mandatory, and the connection in which it is
There are, it is true, many things that an accused may waive by silence or by agreement. But, in our judgment, a condemned man can not shorten his own life by consenting that he may be hung at an earlier day than that prescribed by an imperative law. Nor do we believe that a man can, by consent or agreement, make it proper to hang him in a manner, or at a time, different from that prescribed by a.plain and positive statute. The statute provides that a man condemned to death shall be hung, and we think it clear that no agreement, express or implied, would authorize a court to change the mode of inflicting death to poisoning, beheading or shooting. So, too, our statute prescribes how the execution shall be conducted, and surely the-consent of the condemned man would not authorize the court to adjudge that it should be conducted in a manner different from that prescribed. If the court can not, and we think it very clear that it can not, change the method and manner of inflicting the death penalty, it certainly can not fix a time different from that ex
The court below erred in fixing the time of punishment, and so much of the judgment as designates the time of execution must be held to be utterly without force. This question meets us at the very threshold; it stands out on the record so prominently that we can take no step without disposing of it; it must be disposed of at the very outset. We know from a bare inspection of the record that we can make no progress without first settling this question. To grant time would be useless, because we know now that the time fixed for the execution vitiates that much of the judgment, and that the case must go back to the trial court, for the accused is entitled to such a judgment as the statute prescribes, and when that is pronounced he can, if he elects, appeal.
The judgment of this court is that the cause be remanded, with instructions to the trial court to call the appellant before it and pronounce judgment fixing the time of execution at not less than one hundred days from the time of pronouncing judgment under this mandate, and that when the time is fixed in compliance with the mandate of this court, the judgment of the Marion Criminal Court shall be in full force and effect until changed, annulled or reversed by competent authority and in due course of law.
