Lowenberg v. People

5 Park. Cr. 414 | N.Y. Sup. Ct. | 1863

Lead Opinion

Thompson, J.,

in the above case, says : “ By the 4th section of the act of 1830, it is provided that if, upon the examination, any package shall be found to contain any article not described in the invoice, or if such package or invoice be made up with intent to defraud the revenue, the same shall be forfeited. The disjunctive particle or being used, the forfeiture declared may attach to the want of correspondence as well as to the fraudulent intent; but in the act of 1832 the conjunctive particle and is used in the like connection, and which, in a penal statute, cannot be construed or." (Id., 165, 166.)

In The Case of the Schooner Enterprise (1 Paine's C. C. R., 32), Livingston, J., in delivering the opinion of the court, says: “ For, although ignorance of the existence of a law be no excuse for its violation, yet, if this ignorance .be the consequence of an ambiguous or obscure phraseology, some indulgence is due to it. It should be a principle of every criminal code, and certainly belongs to.ours, that no person be adjudged guilty of an offense unless it be created and promulgated in terms which leave no reasonable doubt of their meaning. If it be the duty of a jury to acquit where such doubts exist concerning a fact, it is equally incumbent on a judge not to apply the law to a case where he labors under the same uncertainty as to the meaning of the legislature. If this be involved in considerable difficulty, from the use of language not perfectly intelligible, unusual circumspection becomes necessary, especially if the consequence be so penal as scarcely to admit of aggravation. When the sense of a penal statute ,is obvious, consequences are to be disregarded; but if doubtful, they are to have their weight in its interpretation. It will at once be conceded that no man should be stripped of a valuable property, perhaps of his all; be disfranchised, and consigned to public ignominy and reproach; unless it be very clear that such high penalties have been annexed by law to the act which he has committed.” (Id., p. 34.)

If. the statute is ambiguous, the court ought not to inflict the penalty. (1 Paine’s C. C. R, 32.)

An act, subjecting one to punishment, must be within both the letter and spirit of the law. (Crosby v. Hawthorne, 25 Ala., 221.)

A penalty cannot be created by implication. (Jones v. Estis, 2 Johns., 380.) In this case the court say: “ A penalty cannot bé raised by implication, but must be expressly created and imposed.”

Berry v. Ripley (1 Mass. R., 167), is an authority to the same point.

An averment that the ship was fitted out, &c., “ with intent .that the said vessel should be employed,” was held fatally defective; the words of the statute being, “ to employ.” (United States v. Gooding, 12 Wheat. R., 460.)

In Elam v. Ransom.(21 Geo. R., 149), the court, per Bruning, J., says: “ The common law leans toward that construction of all statutes which is in favor of personal liberty, not that which is against personal liberty."

In Lair v. Killmer (1 Duch. R., 522), the court, per Chief Justice Green, says: “In defining the crime and the punishment, penal statutes are to be taken strictly and literally. A penal law cannot be extended by construction. The act constituting the offense must be both within the spirit and the letter of the statute.”

In Commonwealth v. Carroll (8 Mass. R, 490), breaking and entering in the night time a warehouse with intent to steal, &c., was held not to be within the provision that if any person ■“ shall in the night time enter, without breaking, or in the day time break' and enter,” &c.; and yet no one can doubt that the legislature intended to provide against breaking and entering in the night time.

In State v. King (12 Louis. R., 593), it was held, that in construing penal statutes, courts cannot take into view the motives of the lawgiver, further than they are expressed in the statute.

The case of Hartung v. The People (22 N. Y. R., 95), contains nothing in the. slightest degree conflicting with the authorities above cited. Judge Denio, in his very able and elaborate opinion, nowhere intimates that penal statutes are not to be construed strictly, and in accordance with the authorities here cited. .He does intimate, however, that it was the intention of the legislature of 1860, to preserve the punishment of death. ■ He does not, however, express the opinion that the legislature did preserve capital punishment. The subject of construing penal or criminal statutes strictly, was not before the court. The question was, whether the legislature possessed the power, no matter with what certainty and precision the act was worded, to impose a punishment for an offense different in kind from that which existed when the crime was committed. The court held that no such power existed, and that a law which had that effect, was ex post facto and unconstitutional.

In reference to the law of 1860, Judge Denio observes, that it is “ inferable from the 1st section, and also from the 4th and 5th sections, that capital punishment was intended to be retained.” All the authorities show, that if such an intention be merely “inferable,” and not contained in express words, it is of no avail; for, in the language of Green, Oh. J. (1 Duck. R., 522, above cited), “ In defining the crime and the punishment, penal statutes are to be taken strictly and literally. The penal law cannot be extended by construction.”

Judge Denio further observes: “It is true that in the declaration of the first section, that no crime, except treason and the first degree of murder, should be punished with death, there is an implication, in the nature of a negative pregnant, that those crimes shall be so punished.” In reference to the 4th section, he says: It may be “implied” that such was the intention of the legislature, and that in the 5th section there is an “ implication ” to the same effect.

While, with reference to the intention of the legislature to preserve capital punishment, the learned judge only uses the words “inferable,” “implied” and “implication,” he quite as distinctly concedes that “there was not in.either of these sections, or elsewhere in the act, any separate provision for the punishment of that crime (murder in the first degree), or which declared that any crime should be punished with'death.” This is quite sufficient to dispose of the case of the plaintiff in error in his favor, for all must concede that the “ letter of the law ” of 1860, does not prescribe the punishment of death. In the language of Hosmer, Ch. J., in Dagget v. The State (4 Conn. R., 63), “ In extension of the letter of the law, nothing may be assumed by implication; nor may the mischief intended to be prevented or redressed, as against the offender, be regarded in its construction.”

Although the counsel for the plaintiff in error have no doubt that the legislature of 1860 intended to abolish capital punishment, founding their opinion upon the skillful manner in which every section of any statute which could, within the rules of construction of criminal statutes, have the effect to continue that punishment, was abolished, yet they do not deem it of any particular importance whether the legislature 80 intended or not, it being sufficient, that if they intended to. continue capital punishment, they did not carry that intention into effect, but, on the contrary, abolished capital punishment. Whether that was the result of deliberate design or inadvertence, can make no difference in the result of this case.

III. The sentence of the plaintiff in error, that he shall “ suffer death," is vague, indefinite and uncertain, and for that reason not susceptible of enforcement.

The sentence does not even provide that the prisoner shall suffer death by violence. The sentence is as-uncertain as the law under which it was pronounced. The officer appointed to execute the sentence has no power to select the mode of death; to give him this power would be to clothe him with judicial functions and attributes. The sentence, within every rule of law applicable to the case, is a nullity.

IV. The plaintiff in error was. tried and convicted in the Court of General Sessions of the peace, in and for the city and county of Hew York, on the 11th day of December, 1861, and was sentenced on 4th of January, 1862. The Decent-, her term of the court expired on the third Saturday of that month,' and the next term of the court could not begin until the first Monday of January, 1862, which came on the sixth day of the month. There was no law in existence at that time which permitted the Mew York General Sessions of the peace to hold court and pass sentence between the third Saturday of December and the sixth day of January following, the latter being the first Monday of the month. That court being one of limited jurisdiction, and deriving its powers only from express statutes, of course could not sit, except at the times specified in the statutes. The following are the only statutes applicable to the subject:

“ The said Court of General Sessions (that is, 1 the Court of General Sessions of the Peace in and for the city and county of Mew York’) (3 R. S., 311, § 66, 5th ed.) shall commence and be held on the first Monday in every month, and may continue and be held every day from the commencement thereof, until and including Saturday in the third week thereafter.” (3 R. S., 312, § 70, 5th ed.)

“ Whenever the trial of a cause shall have been commenced in the Court of General Sessions of the Peace, in and for the city and county of Mew York, and the same shall not be concluded before the expiration of the term of said court, it shall be lawful for the said court to continue in session until the conclusion of said trial, and to proceed to judgment if they shall so deem necessary, in cases where conviction shall be had.” (Laws of 1846, p. 4.)

An act to empower Courts of Sessions, in the several counties of this State, to extend their terms, and authorizing certain adjournments of such courts, passed April 9, 1859, provides as follows (Laws 1859, p. 465, § 1): “ It shall be lawful for the Court of Sessions of any county of this State, to continue its sittings at any term thereof, so long as it may be necessary, in the opinion of such court, for the dispatch of any business, or the determination of any cases that may be pending before such court.”

“'§ 2. The Court of Sessions of any county in this State,. shall hereafter have, and may, in their discretion, exercise all the powers in regard to adjournments thereof, from time to time, which are now by law conferred upon or exercised by the Court of Oyer and Terminer of such county, in relation to adjournments of said last named court”

Hone of the statutes above cited gives the Hew York General Sessions of the Peace the power to extend its terms beyond the third Saturday after the first Monday of the month.

The act of 1859 does not confer this power, for the reason that it refers to the “ Court of Sessions of any county.” This language does not embrace the Hew York General Sessions of the Peace, in and for the city and county of Hew York.

This court expressly held, at the last General Term, that the phrase, “the Courts of Sessions of the several counties,” did not include “ the General Sessions of the Peace in the city and county of Hew York.” (People v. Court of General Sessions of the city and county of New York, reported in N. Y. Transcript, Oct. 16, 1862.)

Justice Ingraham,

in delivering the opinion of the court, observes: “ These various provisions, to-which I have referred, show, I think conclusively, that the old courts of General Ses-sions, except in the city of New York, were not continued after the Constitution of 1847, but that new courts were organized in all the other counties of the- State under a different name, while the General Sessions in Hew York was continued with all its then powers and jurisdiction, and has been so recognized by the legislature in all laws passed since the adoption of the Constitution relating to the said court.” * * “If this view be correct, the only question would be, whether the term ‘ Courts of Sessions,’ as used in the act of 1859, is to be construed as applying to all the courts in this State of that name, and also to the General Sessions of the Peace in the city of Hew York.”'

The learned judge then proceeds .to show that the language, “ Courts of Sessions of the several counties ” has no reference to the “ General Sessions of the Peace in this city and county.”

The act of 1846, above cited, does not give the court the power to extend its term, except in a case the trial of which “ sha.ll not be concluded before the expiration of the term of said court.” In that event it merely gives the court power “ to continue in session until the conclusion of said trial, and tó proceed to judgment, &e.” In the case of Lowenberg, the trial ended on the eleventh day of December, A. D. 1861, about two weeks before the third Saturday of term.

It is clear, therefore, that none of these statutes gives the court the power to sit and pass judgment between the third Saturday of one term-and the first Monday of the next term.

In construing these statutes, the attention of the court is invited to the authorities cited under point II. The rule of strict construction must prevail.

The sentence is not only vague, indefinite, uncertain, and not only susceptible of enforcement, but was passed by a court not in existence at the time.

Y. The judgment oft the court below should have been arrested.

Nelson J. Waterbury (district attorney), for the People, contended that the sentence of the prisoner was not illegal, and was capable of enforcement.

■ Peckham, J.

I incline to think enough may be gathered by putting together parts of its different sections to hold and adjudge that murder, “ of the first degree,” as therein defined, was a “ crime punishable with death,” as prescribed in the 4th and 5th sections of the laws of 1860, page 712.

The first section of that act declares that “no crime hereafter committed, except treason and murder óf the first degree, shall be punished with death.”

It is true this section does not affirmatively enact that these crimes shall be so punished, but it does declare that no others shall.

The 2d section defines murder “ of the first degree.”

The 4th and 5th sections prescribe the punishment of persons “ convicted of any crime punishable with death,” but do not declare or define crimes so punishable. The 6th section prescribes the punishment of “ murder in the second degree.” Section 9th declares that “ the provisions of this act for the punishment of murder in the first degree shall apply to the crime of treason.”

This is a strong implication that the punishment prescribed in the 4th and 5th sections, for persons “convicted of any crime punishable with death,” applies to the crime of murder of the first degree, as there are but two punishments prescribed in that act, and one is confined expressly to persons guilty of “ murder in the second degree.”

The other punishment is therefore necessarily applied to murder 'in the first degree.

The 8th section recognizes the same thing.

The 7th section is only confusing, but does not destroy toe enactments of the others.

But, assuming that “ murder of the first degree,” of which the prisoner is convicted, is by this act punishable with death, is the act, in that respect, constitutional ?

The 5th section of the 1st article of the Constitution of 1846, declares that “ cruel and unusual punishments ” shall not be inflicted.

Execution by hanging was the mode adopted and required • by law prior to the act of 1860, but that act expressly repealed the statute as to hanging, and has substituted nothing in its place.

In The People v. Hartung (22 N. Y. R, 107), Judge Denio properly says that it is not clear whether, under this act, “ the manner of the execution should be determined by the court, the governor, or the sheriff.”

If it cannot be decided which one has the power to direct the manner of the execution, can either one exercise any such power ? I think all would agree, having reference to the duties of the different officers, that the manner of the execution should be directed by the court. Prior to this statute, I think, the court has always so directed in this State. If it were the duty of the court, then the court committed an error in this case, in omitting to give such direction.

It may justly be added, that there is nothing in the act in terms authorizing either the court or the governor to direct the manner of the execution.

If the execution, then, shall ever be effected, its manner, practically, will rest entirely in the discretion of the sheriff.

The prisoner may thus “suffer” death in any manner agreeable to the discretion or the caprice of the sheriff. He may shoot, burn or torture him, or even starve him to death.

It is no answer to say that the prohibition in the Constitution is equally obligatory upon the sheriff as upon other officials.

Where is the remedy in case of its violation in such a case ? This constitutional prohibition was directed to the legislature. It was intended to guide and govern their legislation. It was never aimed at a mere executive officer, whose whole duty, under our government, is simply to carry into effect a certain and declared law.

Suppose the legislature should enact that a person guilty, of a certain offense should suffer such punishment, except hanging, as the sheriff df the county where he should be sentenced to jail, should think proper to inflict.

Would that be a valid law? I think not, for one reason— because it would permit, not that it directed, cruel and unusual punishments. The Constitution intended that the legislature should declare punishments not cruel and unusual — not leave it to the discretion of a sheriff whether they should be inflicted — and that is the view of this statute.

But there is another difficulty in the record in this case which I think fatal to this conviction.

The Court of Sessions, sitting on the fourth day of January, 1862, sentenced the prisoner to be executed on the 20th day of February, 1863, and “ to imprisonment at hard labor until such punishment of death shall be inflicted.”

The court thus inflict a punishment of over thirteen and a half months at hard labor, besides the punishment of death, when the act only authorizes a sentence of a year at hard labor.

In the People v. Hartung, before cited, the court expressly held that imprisonment at hard labor before execution, was an additional punishment, and in that case, as it was imposed by an act passed after the offense had been committed, the court held it to be an ex post facto law, unconstitutional and void. In the case at bar this additional imprisonment or punishment being wholly unauthorized by law, is therefore illegal and void.

It may be urged that the governor, being authorized to issue his warrant for the prisoner’s execution, may do so under the. act at any time after a year from such sentence, whether the time shall have arrived for the execution, according to the sentence, or not.

It is true he may and must wait until after-the expiration of the year from the time sentence was pronounced, but has he any authority to issue his warrant for the execution before the time fixed by the sentence ? Ho such authority is given him. He does not pass or pronounce the sentence. He simply commands it “to be carried into execution.’’

But assuming that this act is utterly void-for any reason, so far as regards the death penalty, is the punishment of imprisonment thereby rendered ineffectual, or in any degree impaired ? I incline to think not.

Suppose the act had declared that any person guilty of murder in the first degree should be confined in prison until the legislature should pass a valid law to hang him. "V ery probably the legislature might not have the power to pass a valid law to that effect. It might be regarded as an ex post facto law; but would such a provision nullify or impair the penalty of imprisonment? I think not. -It would be simply another way — an oblique and crooked way, perhaps—of imposing a penalty of imprisonment for life.

It is by no means clear that the legislature, or the author of this statute, intended that the convict should be ever actually executed. All the provisions as to inflicting death seem intended rather for alarm than for real peril to the convict.

By the fifth section it is declared that no execution shall take place until the whole record of the proceedings shall be certified by the clerk of the court to the governor, nor until the governor shall issue his warrant, &c. Yet there is no statute making it the duty of the clerk to transmit such certified copy. Hor is the governor required ever to issue his warrant. He is not, even affirmatively, in terms authorized to issue it.

Holding the statute effective, therefore, as to the imprisonment, and void as to the death penalty — that passing a formal sentence of death, in itself utterly void and that cannot be executed, accompanied with a sentence of imprisonment until the punishment of death shall be inflicted, is simply a mode of sentencing to imprisonmentfor life, this judgment may be sustained.

Leohard, J.

The act of 1860 distinctly recognizes, as an existing fact, that certain crimes are punishable with death.

Is murder such a crime ? From the earliest ages until the enactment of the statute referred to, murder has been uniformly punished with death by the nation to which the colony of Hew York belonged in 1775, and at the time of our separation from the mother country. The statutes and common law of that country are, by the Constitution of this State, continued in force, except so far as they are repealed or abrogated.

The act in question has not repealed or abrogated the penalty of death in case of murder, nor has any other statute of this State. On the contrary, the act of 1860 excepts murder in the first degree, from the abrogation of the death penalty as a punishment for crimes.

The 4th section provides a distinct penalty for crimes punishable with death. The offender shall be sentenced to confinement at hard labor in the State prison until the punishment of death shall be inflicted.

It is made the duty of the court to pass this sentence upon the conviction of the offender.

The mode of inflicting death is not prescribed. Ho warrant can therefore be issued by the governor for the execution of the person convicted and sentenced. •

The condemned offender will .remain, necessarily, in the State prison, awaiting the warrant, the residue of his life.

This result was, perhaps, the intention of the author of the act, although not probably that of the legislature.

The intention of the author or of the legislature, is not, however, referred to as an argument for or against the judgment.

The sentence pronounced is within the letter of the statute, in my opinion.,

The crimes punishable with death, referred to in the 4th section of the act of 1860, are not limited to cases where the penalty of death is provided by statute.

The first section of the late act is inconsistent with, and must be held to have repealed the first section of title one, chapter one, part fourth -of the Revised Statutes, without the amendment provided by section seven of the act. That amendment is, however, disconnected from everything else in the chapter, and stands without any legal effect.

No argument is to be drawn, therefore, from the words “ as herein provided,” contained in the amended section, limiting the description of the offender contained in 4th section of the act, so as to require a statutory direction to include the offender who is to be sentenced.

The objection that the sentence was passed after the expiration of the term of the court, or in vacation, is not well taken.

It does not appear that the term had closed. The Court of General Sessions of the peace is authorised to continue its term so as to complete any unfinished trial. The term may have been prolonged from that cause. The presumption of law is in favor of the regularity of the proceedings of courts of justice.

The judgment ought to be affirmed.

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Dissenting Opinion

Ingraham, P. J. (dissenting).

The prisoner was tried and convicted in the Court of General Sessions, of the crime of murder in the first degree, and was sentenced to imprisonment and death.

The murder was committed on the 14th of November, 1861. The trial took place on the 11th of December, 1861, and the prisoner was sentenced on the 4th of January, 1862, in the fourth week after the commencement of the December .term. The court had been extended for the trial of another case, and during the week for which it was so extended, the sentence took place.

The great question we are called upon to decide in this case, arises, upon the construction of the act passed in 1860, in “ relation to capital punishment, and to provide for the more certain punishment of the crime of murder.” (Laws of 1860, ch. 410.)

Prior to the passage of this act, the law for the punishment of murder was contained in the Eevised Statutes' (3d vol., p. 935).

The 1st section of this statute was simple and easily understood, and provided “ that every person who should thereafter be' convicted of treason, of murder, or of arson in the first degree, should suffer death for the same.” The same chapter provided for the mode of execution, and the time within which it should take place.

By the act of 1860, the 1st section of the chapter of the Eevised Statutes above referred to was amended so as to read as follows:

“ Every person ■ who shall hereafter be convicted of, 1st, treason against the People of this State, or 2d, of murder, or 3d, of arson in the first degree, as those crimes are declared in this title, shall be punished as herein provided.”

The effect of this amendment was-to abolish the section of the Eevised Statutes as it existed at the time of the passage of the act of 1860, and to substitute in its place the section as adopted in that act.

It was thus enacted by the 1st section of that chapter of the Eevised Statutes, as amended, that the. crime of murder should be punished as provided for in the title 1, chapter 1, of part 4, of Eevised Statutes. • There is no section in the whole title, which provides-any punishmént for murder.

There never was any such provision, except in the first section, which was virtually repealed and taken away by the amendment of 1860, and we look in vain throughout the whole chapter for any punishment to be inflicted for .this offense.

But, as if to destroy entirely the supposition that anything was to be left in the statute sanctioning the punishment of death for murder, under the provisions of that act, the law of 1860 also repealed the section fixing the time for executing such punishment, the provisions for submitting the case to the governor for revision before execution, the provisions for reprieves in certain cases for females, the mode of execution by hanging, the directing the execution in the prison yard, and the provision for another place of execution, in case the prison of the county was unfit therefor.

While, therefore, the amended first section' required the crime of murder to be punished as therein provided, the only portion of the chapter that contained any punishment had been taken away, and every portion of the chapter that contained anything relating to the punishment of death was utterly repealed.

We look in vain, therefore, throughout this title of the ¡Revised Statutes for any punishment prescribed for the crime of murder, and unless some other provision is made in another statute, no such punishment can be found in the laws of this State as they existed at the time of this offense.

In the act of 1860, there is no punishment expressly provided for murder in the first degree.

. The 1st section enacts that no other crime than treason and murder, in the first degree, shall be punished with death. .This is a provision for limiting the punishment of other offenses, not providing punishment for the excepted cases, and while the statute provides a punishment for murder in the second degree, for arson and other offenses, it leaves the punishment for the greater offenses not only undefined, but if they can be discovered at all from the act, to rest on inferences merely to be drawn from the negative provisions of the first section.

It cannot be denied that at the time of the commission of this offense there was no provision of the law directly prescribing the punishment of death for treason or murder in the first degree, or directing any punishment whatever, and if the court directs the execution of the prisoner, or the sheriff carries out such direction, the court and sheriff must act, in taking the life of a human being, without any direct authority of law, and upon a mere inference to be drawn from a negative provision of a statute, and from the absence of any law providing any other punishments. When a public officer is called upon to take the life of another, he may well ask that his duty should be clearly laid down by the law; that such acts should not rest on mere inference or implication, but that he should have his warrant for what he does in the clear provisions of the statute and the mandate of the court. To take away the life of a prisoner under a doubtful construction of the law, or on a mere inference or implied authority from the absence of legislative provisions, might lead to a judicial murder rather than to carrying into effect the law of the land.

It is very clear that the legislature did not intend that all the offenses enumerated in the first section of the title in the Eevised Statutes above referred to, should be punished with death. In that section was included the offense of arson in the first degree, and not even by inference can any authority be found for a greater punishment for this offense than imprisonment at hard labor in the State prison.

So the General Term of this district held, in the case of Shepherd, and in that case the Court of Appeals have since-held that under the act of 1860 he could not be sentenced to any punishment. Whether such was the intent of the author of the act of 1860, in regard to the crime of murder, is a question not free from difficulty. The omission to provide, by direct enactment, any punishment for the highest crimes known to the law—treason and murder — the cautious repeal of every provision of the Eevised Statutes bearing upon the death penalty or relating thereto, especially the absolute repeal of the section providing the mode of execution by hanging, without substituting any other direction as to the mode by which death was to be inflicted, do not make the duty of the court clear or free from doubt, so as to warrant us in saying that the legislature clearly intended to retain the punishment of death for this offense.

I purpose now to examine the cases decided in the Court of Appeals, in which the act of 1860 has been tlie subject of discussion. These are, The People v. Hartung (22 N. Y. R., 95), and The People v. Shay (22 N. Y. R., 317).

It must be remembered that these cases were for offenses committed before the passage of the act of 1860, and the question involved in these cases was not whether offenses committed after its passage could be punished under it, but whether the repeal of the statute and the additional punishment of one year’s imprisonment, as provided for in the fourth section, did not prevent the execution of the judgment, and the court decided such to be its effects.

The reason given for the reversal of the judgment, was that there was not at the time any law which authorized or' sustained it, or which would warrant its execution; and in the case of Shay, all the exceptions at the trial, and the motion in arrest, were decided against the prisoner, but that judgment was also reversed, for the reasons stated, in the case of Hartung.

We have been referred to the views of the learned justice who delivered the opinion in those cases, as authority for holding that the punishment of death was retained by the act .of 1860.

The substance of these views is, that no law at the time contained any separate provision for the punishment of murder in the first degree, or which declared that any crime should be punished with death; that if there was any punishment, it could only be known by inference or implication; that in the first section, which declared that no crime but treason and murder in the first degree should be punished with -death, there “ is an implication in the nature of a negative pregnant, that those crimes should be so punishedthat in the fourth section of' the statute it was also implied that there were some crimes to be punished capitally, and, upon considering the whole law, that the intention to preserve the punishment of death, when the. governor shall approve of the sentence, in addition to imprisonment for one year, was so manifest that the court would assume such to be the effect of the statute.

It could not be necessary in that case to decide whether there was any punishment provided in the act of 1860 for the offenses of treason and murder in the first degree, if committed after the passage of the act. Although the act of 1860 provided that persons under conviction or sentence should be punishéd as if convicted under that act, still Judge Denio held that there was not at that time any law which authorized or sustained the judgment, or would warrant its execution.

We are left, then, to the simple question whether, when the statute contains no provision imposing the punishment of death for murder in the first degree, such punishment should be inflicted, merely because it might be inferred from the statute that the legislature supposed the punishment of death was retained, or that such punishment should be inflicted, because in another part of the statute provision was made as to the action of the governor before the sentence could be carried out.

I cannot assent to the proposition that the court should condemn to death simply because they can guess that the legislature intended to preserve this punishment. Nor do I assent to the conclusion that it is very clear that any such intention existed. The alteration of the section which contained this punishment of death, the omission to substitute any other punishment, the studied repeal of the provisions relating to such executions, and particularly the repeal of the section which declared the mode in which such death should be effected, seem to me rather,to imply that it was not intended to have such punishments continued. It is a well settled principle in the construction of a penal statute, that it must be construed strictly (Sprague v. Birdsall, 2 Cow. R., 419); and a penalty cannot be raised by implication, but must be expressly created and imposed. (Jones v. Estes, 2 Johns. R., 379.)

If so much strictness is required merely to impose a penalty for the violation of law, of how much more importance is it to require clear warrant for the penalty of death and full authority to take human life, not merely resting on inference and implication, but on the full and express provision of law therefor.

It has been suggested that the defect of our statutes might be remedied by invoking the doctrine that a repeal of a statute, without substituting any in its place, revived the rules of the common law. This may be so, and may relieve the difficulty which would exist as to the mode of execution; but a difficulty will at once arise from the fact that it is not a mere' repeal of a statute, but an amendment, in which the offense is regulated, and which purports elsewhere to provide a punishment, by directing that it should be punished “as is herein provided.” It can hardly be said that the statute on this subject is repealed, so far as to revive the common law offense of murder and the common law punishment, while that statute remains in force.

I am aware that, in The People v. Hartung (23 How. Pr. R., 314), a contrary opinion was expressed by Hog-EBOOM, J., as to the effect of the act of 1860 on this question ; but as the offense in that case was committed before the passage of the act, it can hardly be considered as controlling in this case.

The judgment should be reversed.

Judgment affirmed.¹

1 Note. —This judgment was affirmed by the Court of Appeals, in October, 1863, but not on all the grounds stated in the above opinions. The leading opinion in the Court of Appeals holds that the court erred in naming the day for the execution of the prisoner, but that was not a sufficient reason for reversal; that the day should be left to be designated by the governor; that, though the statute, declaring that the punishment of death should be inflicted by hanging, is repealed, it does not abrogate the common law which prescribed the same mode of punishment. Baioom, J., said: “The proper sentence would have been, that the prisoner suffer death for the crime of murder in the first degree, in killing Samuel Hoffman, at the city of New York, on the 14th day of November, 1861, whereof he has been duly convicted, by being hung by the neck until he be dead, by the sheriff of the county in which he shall be imprisoned, at such time and place, after the expiration of one year from the date of his sentence, as such sheriff shall be commanded by a warrant issued by the governor, under