28 P. 816 | Cal. | 1891
Lead Opinion
The defendant was accused by information of the crime of murder, alleged to have been committed in March, 1888. In August, 1888, he was convicted of murder in the first degree, and, in accordance with the law as it then stood, was sentenced to be hanged by the sheriff in the county jail. On appeal to this court the judgment of the superior court was affirmed: 26 Pac. 597. But before a remittitur had issued our attention was called to certain amendments to the Penal Code, enacted by the last legislature, pending the appeal, changing the method and time for executing capital sentences, which, it is contended, are inapplicable to the case of this appellant, because they are, as to him, ex post facto, but which at the same time have the 'effect of repealing the old law, under which alone he could have been executed, the result being, as claimed, that in consequence of a blunder of the legislature he and all others in his situation must go free of all punishment. For the purpose of considering and determining this important question the 'judgment of affirmance was vacated and a reargument ordered. The case having been again argued and submitted, we are now to decide upon the effect of the legislation referred to.
The question involved is no less than this: Whether, since the date fixed for the taking effect of the amendatory statute—May 30, 1891—capital punishment can be inflicted in any case of murder, however atrocious, committed prior to that date; and whether, in a case like this, where a judgment of death, free from error, had been entered, but not executed, prior to said date, any punishment whatever can be inflicted. The gravity of this question will be better appreciated when it is understood that there are, according to .the statement of the attorney general, no less than eighteen convicted murderers whose fate depends upon its solution, and who, if it is determined in favor of the contention of the appellant, must" be turned loose upon society, unless this court shall, as his counsel suggests, reverse the judgments, with or without reason,
It is to be premised that from an early period in the history of California the crime of murder—the unlawful killing of a human being with malice aforethought—has been divided into two degrees—murder of the first and murder of the second degree. Without undertaking to state fully the distinction between the two crimes, it is sufficient for our purpose to say that the first degree includes those murders which are marked by deliberation or cruelty, or which are committed in the perpetration or attempt to perpetrate certain enumerated felonies of the gravest character. It has been the unvarying expression of the legislative will, sustained by the sentiment of the people of California, that such murders deserve the penalty of death by hanging, unless (according to a comparatively recent enactment) the jury trying the case, in their discretion, expressly determined by their verdict that the defendant may be punished by imprisonment in the state prison for life: Pen. Code, sec. 190; People v. Welch, 49 Cal. 174. In this law there has been no change since the commission of the homicide of which the appellant was convicted. It re
It must be admitted, however, that the supreme court of the United States found and declared a distinction, material in its view, between the statute of Minnesota—considered in the Holden case—and the statute of Colorado, under which the Medley case arose: Ex parte Medley, 134 U. S. 160, 33 L. Ed. 835,10 Sup. Ct. Rep. 384. In that ease Medley was convicted of murder, and sentenced to be hanged in the manner and at the time and place prescribed by a statute which did not go into effect, although passed, before he committed the murder. Pending the execution, and while in the custody of the warden
The Colorado statute (Laws 1889, p. 118) is quoted at page 163, 134 U. S., page 837, 33 L. Ed., and pages 384 and 385, 10 Sup. Ct. Rep. According to the contention of the petitioner in that case, there were no less than twenty variances between the statute in force at the date of the murder and that under which he was sentenced, all of which he claimed to be changes to his prejudice and injury, and therefore ex post facto. The court, however, found it unnecessary to examine all these specifications, being satisfied that in two important particulars the law was infected with the vice imputed
For the purpose of comparing the law of this state existing at the time the appellant committed the murder of which he was convicted with the amendments made or attempted by the act of 1891 (Laws 1891, p. 272), we shall quote sections 1217, 1227 and 1229 of the Penal Code, as they existed at the date of the crime, and in their amended form:
THE OLD LAW.
“Sec. 1217. When judgment of death is rendered, a warrant, signed by the judge and attested by the clerk under the seal of the court, must be drawn and delivered by the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of judgment.”
“Sec. 1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction was had, on the application of the district attorney, must order the defendant to be brought before it, or, if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and, if no legal reasons exist against the execution of the judgment, must make an order that the sheriff execute the judgment at a specified time. The sheriff must execute the judgment accordingly.”
“Sec. 1229. A judgment of death must be executed within the walls or yard of a jail, or some convenient private place in the county. The sheriff of the county must be present at the execution, and must invite the presence of a physician, the district attorney of the county, and at least twelve reputable citizens, to be selected by him; and he shall, at the request of the defendant, permit such ministers of the Gospel, not exceeding two, as the defendant may name, and any per*448 sons, relatives, or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same.”
THE ACT OF 1891.
“Sec. 1217. When judgment of death is rendered, a warrant, signed by the judge, and attested by the clerk, under the seal of the court, must be drawn and delivered to the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than sixty nor more than ninety days from the time of judgment, and must direct the sheriff to deliver the defendant, within ten days from the time of judgment, to the warden of one of the state prisons of this state for execution; such prison to be designated in the warrant.”
“Sec. 1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction is had, on the application of the district attorney of the county in which the conviction is had, must order the defendant to be brought before it, or, if he is at large, a warrant for apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and, if no legal reasons exist against the execution of the judgment, must make an order that the warden of the state prison to whom the sheriff is directed to deliver the defendant shall execute the judgment at a specified time. The warden must execute the judgment accordingly.”
“Sec. 1229. A judgment of death must be executed within the walls of one of the state prisons designated by the court by which judgment is rendered. The warden of the state prison where the execution is to take place must be present at the execution, and must invite the presence of a physician, the attorney general of the state, and at least twelve reputable citizens, to be selected by him; and he shall, at the request of the defendant, permit such ministers of the Gospel, not exceeding two, as the defendant may name, and any persons, relatives, or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other persons*449 than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same.”
A comparison of these sections will demonstrate all the substantial changes—if there are any such—which the legislature has attempted to make in the old law. It will readily be seen that our statute differs materially from that of the state of Colorado. The day and hour of the execution are not to be kept secret from the prisoner under the new provisions any further than under the old; and the same persons, including those whom he is allowed to designate, are to be present at the execution. Neither is there any express provision for keeping him in solitary confinement during the time which is to elapse between the date of his delivery at the prison and the time of execution; and, if the opinion, of the supreme court of the United States in Medley’s case had rested solely upon their construction of the meaning of the term “solitary confinement,” we should have experienced no difficulty in distinguishing that case from the case before us. But in truth the context of the Colorado statute shows that the words “solitary confinement” were not used therein in their strict sense. The language of the act is as follows: “Who shall keep such convict in solitary confinement until infliction of the death penalty; and no person shall be allowed access to said convict, except his attendants, counsel, physician, a spiritual adviser of his own selection, and members of his family, and then only in accordance with the prison regulations.” It is scarcely necessary to say that a prisoner who may be visited in prison by his counsel, physician, spiritual adviser, and the members of his family, subject only to prison regulations (all prisons, including county jails, being governed by some reasonable regulations), is not kept in solitary confinement in the strict or usual sense of that term. And this consideration was no doubt pressed upon the attention of the court, for in their opinion, delivered by Mr. Justice Miller, they say: ‘ ‘ The qualifying phrase in this statute is but a small mitigation of this solitary confinement, for it expressly declares that no one shall be allowed access to the convict except certain persons, and these are not admissible unless their access to the prisoner is in accordance with prison regulations, prescribed by the board of commissioners of the penitentiary under section 2553 of
By reference to section 1217 of the Penal Code above quoted, and the proposed amendment, it will be seen that the effect of the amendment, if valid, would be to change the period within which the execution must take place from not less than thirty nor more than sixty days to not less than sixty nor more than ninety days after judgment, the result of which is that under the amendment a convict might be kept alive and in dread and apprehension of a painful and ignominious death for thirty days longer than he could have been so kept under the old law. This change, also, it is strenuously argued, and apparently not without authority to sustain the contention, makes the law ex post facto. For, in the first place, it is said that, although by a vast majority of persons condemned to die on the scaffold any postponement of the date of execution would be eagerly welcomed as a boon, there may be some men to whom it would be an aggravation of their suffering. And, in the next place, it is contended that, even if this were not so, the principle that courts and legislatures may be allowed to change the punishment of crimes ex post facto in such manner as in their opinion renders the penalty lighter cannot be admitted without destroying the value of the constitutional guaranty, because there could be no certainty that the legislative or judicial discretion would always be wisely and mercifully exercised; and neither the legislator nor the judge is to be allowed to measure the feelings of the culprit by his own. In short, the cases have gone to the extent of holding that a law which changes the punishment of past
We have seen that under the amendments of 1891 a person convicted of murder in the first degree and sentenced to death must within ten days thereafter be delivered to the warden of the state prison, and be confined -by him for from fifty to eighty days in said prison. If it is in the power of the legislature to add to the penalty of death by hanging a previous imprisonment in the penitentiary for eighty days, the term might, under the same power, be extended to years. And even with respect to a short detention in the state prison this is what is said in the Medley case by the supreme court of the United States (134 U. S. 168, 169, 33 L. Ed. 839, 10 Sup. Ct. Rep. 386, 387): ‘Instead of confinement in the ordinary county prison of the place where he and his friends reside, where they may, under the control of the sheriff, see him and visit him, where the sheriff and his attendants must see him, where his religious adviser and his legal counsel may often visit him, without any hindrance of law on the subject, the convict is transferred to a place where imprisonment always implies disgrace, and which, as this court has judicially decided in Ex parte Wilson, 114 U. S. 417, 29 L. Ed. 89, 5 Sup. Ct. Rep. 935, Mackin v. United States, 117 U. S. 348, 29 L. Ed. 909, 6 Sup. Ct. Rep. 777, Parkinson v. United States, 121 U. S. 281, 30 L. Ed. 959, 7 Sup. Ct. Rep. 896, and United States v. De Walt, 128 U. S. 393, 32 L. Ed. 485, 9 Sup. Ct. Rep. 111, is itself an infamous punishment, and is there to be kept in ‘solitary confinement,’ the primary meaning of which phrase we have already explained.”
Various other grounds are insisted upon by counsel as being each in itself sufficient to render the amendments of 1891 unconstitutional; as, that a convict confined in the state prison awaiting execution would, under the general law, as construed in the Arras Case, 78 Cal. 304, 20 Pac. 683, be compelled to
This conclusion, however, does not dispose of the case, for the appellant was not sentenced to be executed in the manner prescribed by the amendments of 1891, but in the manner provided by the law in force at the date of the murder—that is to say, by the sheriff in the county jail; and the question is whether that sentence can be enforced. Clearly, it cannot be enforced if the old law authorizing the sheriff to execute capital sentences has been repealed. Such was the conclusion reached in the Medley case, and it is sustained by a long and unbroken line of decisions in the English and American courts as to the effect of the repeal of penal statutes. The exact question to be determined, therefore, is whether the old- law has been repealed, and this depends upon the further question whether the amendments of 1891 are in force for any purpose, or to any extent; for, if they are not absolutely void as to all offenses, future as well as past, they took effect on the sixtieth day after the act was approved; and the moment they took effect the old law, at least in so far as it differed from the new, ceased to exist, for the mode of amending laws prescribed by our constitution was followed in this case by re-enacting the various sections of the Penal Code as amended, and under all the decisions of this court the moment such an amendment takes effect so much of the old law as is not re-enacted is repealed. There is, therefore, we repeat, no escape from the conclusion that, if the amendments of 1891 took effect on the 30th of May, 1891, for any purpose or to any extent, the old
Proceeding, then, upon the assumption that it was the intention of the legislature to make the amendments of 1891 applicable to past as well as future offenses, and that they must have known that there were or might be past as well as future offenses to which they would apply, we come next to consider whether the law must be held valid as to one class of cases, though necessarily invalid as to the other. This is not a federal question, and, so far as it may have been involved in the conclusion reached in the Medley case, we are not controlled by that decision. It clearly appears, however, that the question was not there considered, the only question argued being the construction of the Colorado act, whether ex post facto or not: 134 U. S. 162-169, 33 L. Ed. 837-840, 10 Sup. Ct. Rep. 38A-387. The supreme court of Colorado had already decided that the new act was in force, and necessarily that the old act was repealed, and upon this purely state question the supreme court of the United States merely adopted the conclusion of the state court. We are therefore free to consider it, uncontrolled by any superior authority. The general doctrine upon this subject is clearly and briefly stated at pages 213 and 214 of the sixth edition of Cooley’s Constitutional Limitations as follows: “A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. A general law for the punishment of offenses, which endeavors to reach, by its retroactive operation, acts before committed, as well as to prescribe a rule of conduct for the citizen in the future, would be void so far as it was retrospective; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control. A law might be void as violating the obligation of ex
Firmly as we are impressed with the soundness of these views, we are not deterred from applying them to the case before us by the fact that we have not found any decisions of other courts to the same effect, nor by the fact that we are cited to a number of cases in which an opposite conclusion seems to have been reached. It is to be observed, however, with respect to the cases referred to, that most of them differ very materially from this case. In many of the instances in which new enactments have been held to repeal by implication former laws, under which alone past offenses could be punished, the changes in the law with respect to the definition or classification of offenses, or by way of mitigating the penalties of the offense, were so marked and radical as to furnish substantial grounds for holding that the legislature had intended to declare that the former law was not fit to be enforced. A notable instance of this sort is found in the celebrated Hartung case (Hartung v. People, 22 N. Y. 95, 26 N. Y. 167). Mrs. Hartung ppisoned her husband at a time when the punishment prescribed'by law for murder was death by hanging, to be in
We concur: McFarland, J.; Sharpstein, J.; Paterson, 3:
Dissenting Opinion
I regret that I am unable to concur in the foregoing opinion and judgment. I concur in that portion thereof which holds that the effect of the amendments of 1891 is to make such a change in the punishment prescribed for murders committed prior to their enactment as to bring them within the definition of an ex post facto law, and, therefore, that the punishment therein prescribed cannot be inflicted upon the defendant. I do not, however, concur in the conclusion deduced therefrom that we must, for this reason, conclude that the legislature did not intend that such result should follow, or that, if it had known that such would have been the result, it would not have enacted the amendments. Neither do I concur in the construction given to the amendments that the punishment for offenses committed while the former law was in force is so connected with that prescribed for future offenses that we must hold that the legislature did not intend that offenses thereafter committed should be punished in the mode prescribed by the amendments, unless prior offenses could be also punished in the same manner. The rule which generally obtains in the construction of statutes is that when a statute is re-enacted with certain additions, then for the first time made a part of the law, the provisions of the new act which are reproduced from the old and reenacted are deemed to be mere continuations of the former law, rather than a repeal and a re-enactment thereof, and that the portions of the former statute which are omitted from the new are repealed, and are from that time to be regarded as never having been a part of the law, while the new portions are to be regarded as then for the first time presenting the rule of conduct, and are limited in their operation and effect
Section 325 of the Political Code provides: “Where a section or part of a section is amended it is not to be considered as having been repealed and re-enacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment.” If the rule of construction applied in the foregoing cases is derived from the constitution, as was held in Billings v. Harvey, it would seem that the legislature could not by statute change this rule. In Central Pac. R. R. Co. v. Shackelford, 63 Cal. 268, the decision appears to have been made in accordance with the rule laid down in this section of the Political Code, although it is not referred to in the opinion, nor is there any reference to the above decisions, with which it is apparently in conflict. It is, however, unnecessary for the purposes of this case to determine whether the rule laid down in Billings v. Harvey or that prescribed by the Political Code is to prevail, inasmuch as the portions of the statute which are retained in the amended sections do not call for so much consideration as does the effect of those portions then first enacted, compared with the portions of the sections omitted from the re-enactment. Under well-established rules of construction the portions of the original sections which are omitted from the amendments are
The proposition contended for by the appellant is that by these amendments the punishment imposed for the offense has been changed to his disadvantage, „as well as increased, and that, as the legislature provided no saving clause in the statute for offenses committed prior to its passage, as was done in the statute under consideration in People v. Gill, 7 Cal. 356, and as was provided in section 6 of the Penal Code at the time of the enactment of that code, there can be no punishment inflicted upon him for his offense, either under the old statute, for the reason that the punishment thereby prescribed has been repealed, or under the new, as that prescribes a punishment different from and greater than was provided when the offense was committed, and, being ex post facto, is therefore unconstitutional and void. The effect of the repeal of a criminal law is to prevent any further action thereunder. By its removal from the statute-book the court is devested of all authority to try the accused, or, if tried, to pronounce judgment against him. It is immaterial at what stage of the proceeding the repeal takes place. If before trial, the defendant cannot be tried; if after conviction, and before judgment, he cannot be sentenced; if after judgment, and before sentence, he cannot be punished. Unless the proceedings have passed into final judgment, and beyond the necessity of any further action by the court, a repeal of the statute which makes the act an offense, or which defines the punishment for the offense, deprives the court of all further jurisdiction. Whenever the court is called upon to take any step or do any act which directly or in its consequences will have the effect to punish the defendant for any act done by him, it must find its authority therefor in a statute then existing and in force; and if, subsequent to the commission of the offense, the punishment prescribed therefor has been changed, without any saving clause
In 1860 the legislature of New York passed an act changing the punishment for murder, and repealing the prior law for the punishment of that offense, by virtue of which it was held by the court of appeals of that state that the legislature had so interfered with the laws for the punishment of the crime of murder that a particular class of offenders, embracing the prisoner, could not be punished at all. The effect of this was
In United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153, the defendant had been indicted for an offense committed against the naturalization laws, and while the matter was pending on appeal to the supreme court Congress passed an act embracing the whole subject of frauds against the naturalization laws. The supreme court, in disposing of the question, held that, although there was no express repeal of the law under which the defendant was indicted, yet as the provisions of the subsequent act were repugnant to those of the former, it operated as a repeal, saying: “There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offense be at the time in existence. By the repeal the legislative will is expressed that no further proceedings be had under the act repealed.” In Flaherty v. Thomas, 12 Allen, 428, the statute imposing the penalty for an offense was changed after the commission of the act to such an extent that it was held by the court to be a repeal of the former statute, and that the defendant could not be punished, saying: “All criminal statutes are limited in effect, and usually in terms, to future offenses. The establishment of a new rule of punishment is of itself a legislative declaration that the previous rule is not fit to exist, and therefore shall not be applied to any case unless the legislature, in order to prevent offenses already committed from going unpunished, provides that such offenses shall continue to be punished according to the previous laws. It is clearly settled by authority that, in the absence of any such provision, the old law cannot be resorted to after the new law has taken effect for the punishment of an offense committed before the passage of the latter, even if the defendant has been already convicted by the verdict of a jury.” In People v. Tisdale, 57 Cal. 104, it was held that an amendment in 1880 to section 607 of the Penal Code, by which the punishment for an offense was changed from a “fine not exceeding one thousand dollars, or imprisonment in the state prison not
By omitting from the sections as amended the provisions authorizing the judgment to be executed by the sheriff, and within the county where the conviction was had, the legislature deprived the court of all power to authorize such execution by the sheriff, or within the county jail, and also took from the sheriff all capacity to execute the judgment. The amendments had the effect to obliterate from the statute all the provisions that were not re-enacted, as completely as if they had never formed a part thereof. The omitted portions became as if they had never existed, and the new portions are to be construed as if none had preceded them.
It is urged by the attorney general that, in case it shall be held that the sections as amended provided for a greater punishment than the original sections, such provision would be unconstitutional and void, and that, therefore, the amended sections are themselves unconstitutional and inoperative to effect a repeal of the former sections; and it is held in the prevailing opinion that, because it is unconstitutional to apply the punishment prescribed by the amendments to one convicted of an offense committed prior thereto, the amendments are thereby affected with such an unconstitutional element that it defeats their operation in reference to offenses subsequently committed. It is undoubtedly a correct proposition, that the provisions of a statute will not be affected by a subsequent unconstitutional act of the legislature, and that a clause in such act, repealing all other acts which are inconsistent therewith, will not affect the prior statute. The uncon
There is nothing in the terms of the sections as amended in 1891 which is repugnant to any provision of the constitution or beyond the powers of the legislature to adopt. It will not be disputed that it was entirely competent for the legislature, when originally defining crimes and their punishment, to provide that judgment of death should in all cases be carried into effect by the warden of a state prison and within its walls. Its power in this respect was not exhausted by its first exercise. It has the same power to-day to prescribe a different punishment for any crime that it originally had to fix the punishment therefor. It was within the power of the legislature to abolish capital punishment. It could even grant an amnesty for all murderers by simply repealing the section providing for their punishment; and, however much we may conjecture that the legislature would not purposely free a criminal from punishment, or however much we may think that it did not in the present case intend to grant an amnesty
It is conceded in the argument on behalf of the people that, if the amendatory statute had contained a saving clause for the punishment of crimes committed prior to its passage, there would have been no constitutional objection to its validity. The omission of such saving clause cannot, however, make in
In the same clause of the constitution which prohibits the passage of ex post facto laws is the prohibition of laws impairing the obligation of contracts. The statute-books of the several states, as well as of this state, contain many laws of a general nature which violate this latter provision, and which have been held constitutional in their application- to future transactions, although inoperative as to prior ones. Under the rule for amendment provided by the constitution, any section of the codes is to be amended by its re-enactment as amended. In civil matters no saving clause is required. The former law is held to have entered into the contract to such an extent as to be beyond the power of the legislature to deprive the parties to the contract of the rights thereby acquired; but in matters of criminal legislation, unless the saving clause is contained in the amended section, the state, as represented by the legislature, is deemed to have remitted the penalty incurred in the commission of the offense. The amended section is not unconstitutional, but it is unconstitutional to apply it to transactions had prior to its passage. “A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. A general law for the punishment of offenses, which should endeavor to reach, by its retroactive operation, acts before committed, as well as to prescribe a rule of conduct
The principle contained in the prevailing opinion in this case leads necessarily to this result: either that any amendment to that portion of the Penal Code defining crimes and punishments which the legislature may enact without a saving clause for prior offenders is ipso facto unconstitutional, and without its power to enact, or that its validity is to depend upon the conjecture of the individuals who may be the members of this court respecting the intention of the individuals who may have been members of the legislature at the time the amendment was enacted. If the doctrine be correct that because a law which is prospective in its operation, and which in terms is consistent with the constitution, is unconstitutional as to future offenses because it cannot be applied to past offenses, it must follow that the court has imposed a restriction upon the legislature which is not found in the constitution. If, on the other hand, such law is to be declared unconstitutional whenever the members of this court shall be of the opinion that the legislature did not intend what it has expressly and unqualifiedly declared, the certainty of law is substituted by the conjecture or will of the court. “Misera est servitus ubi jus est vagum aut incertum. ’ ’ In none of the instances wherein similar legislation has been construed by the courts of other states has it been even suggested that such legislation was unconstitutional for the reason that its effect could not have been anticipated by the legislature; and, although the decisions of those courts have no binding authority upon us, yet, in a matter which involves only the determination of the proper rules of construction in criminal law, the unanimity of decision in other states is an authority of the most persuasive character. And the rule of construction is the same whether the statute to be construed has reference to the punishment of the highest crime defined in the law or to the slightest misdemeanor. These rules are as uniform for
The rule that a statute which is in part unconstitutional will be declared wholly so is applicable only when it can be seen from the act itself that the unconstitutional part is the “condition or consideration” upon which the other part was enacted, or that the two parts are so interdependent that one cannot exist without the other. If the different parts are separable, or if the subjects to which the act may have a constitutional application are separable from the others, it will not be declared unconstitutional. This rule was laid down with his usual clearness by Chief Justice Shaw in Warren v. Mayor, 2 Gray, 99, where he limits such result to a case where the parts of the statute “are so mutually connected with and dependent on each other as conditions and considerations or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently.” In the case of Fisher v. McGirr, 1 Gray, 21, 61 Am. Dec. 381, that able jurist had said “that, where a statute has been passed by the legislature under all the forms and sanctions requisite to the making of laws, some part of which is not within the competency of legislative power, or is repugnant to any provision of the constitution, such part thereof will be adjudged void and of no avail, whilst all other parts of the act not obnoxious to the same objection will be held valid, and have the force of law.” There is nothing in the statute under consideration indicating that the punishment of previous offenders according to its terms was a condition or consideration for providing that subsequent offenders should be so punished, nor is the punishment of these classes in any respect so interdependent that the one cannot exist without the other. The statute presents the not infrequent case of a law applicable to certain acts, but inapplicable to others by reason of the paramount law. The intention of the legislature, as expressed in its language, is that it shall be applicable to all cases, but this intention cannot be carried out as to certain cases by reason of a constitutional inhibition.
In Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067, a statute of the state of Texas provided for a tax upon every telegraphic message sent by any company doing business
In 1880 various acts were passed amending the sections of the Penal Code for the purpose of adapting them to the new constitution, many of which affected the punishment previously prescribed for offenses, but none of these acts contained any saving clause for prior offenses. In 1874 section 190 of the Penal Code was amended by giving to the jury the discretion to award punishment in the state prison for life instead of death, as the penalty for murder in the first degree: Amend. Code, 1873-74, p. 457. In 1889 section 261 of the Penal Code, defining rape, was amended by making the age of consent fourteen years, instead of ten: Stats. 1889, p. 223. In neither of these statutes was there any saving clause for prior offenses. Very many other sections of the Penal Code have been amended by the legislature without making provision for the effect of such amendments upon previous offenders. If I correctly apprehend the principles maintained in the prevailing opinion herein, any of these amendments to the Penal Code is unconstitutional if it can be shown that at the time of its enactment there were cases pending in court in which individuals charged with crime might have gone unpunished by reason of the statute in force when the crime was committed having been repealed by the amendment. The invalidity of the statute cannot depend upon the fact that the person then charged with the crime did not avail himself of such defense. The statute is to be tested by the conditions existing when it was passed; and, if it would at that time have been declared unconstitutional for that reason, it is equally so to-day, and its unconstitutionality can be invoked by anyone against whom it is sought to be enforced. If the amendments of 1891
In reaching the conclusion that the amendments to the Penal Code in 1891 have so changed the punishment for the offense of which the defendant was convicted that it cannot be imposed upon him, and that there is no existing law for the punishment of his offense, I have not failed to consider that the crime committed by him must go unpunished, but, however much this result may be regretted, it is not for this court to prevent it. The criminal, as well as the upright, is entitled to be protected in the rights guaranteed to him by the constitution. That instrument has been framed as the basis and limit of all legislation, and the lowest, as well as the highest, is entitled to its protection. It is one of the functions of this tribunal to prevent hasty or ill-considered legislation from infringing upon the limitations therein prescribed; and, however great might be our desire, we cannot avoid the responsibility of declaring such legislation inoperative, even though the effect of our decision be that crimes will go unwhipped of justice, or criminals be restored to society. “It is better that any criminal shall go unpunished than that any provision of the constitution shall be disregarded, or that the foundations of the criminal law shall be unsettled”: Lindzey v. State, supra. ‘ ‘ Though it is desirable that all offenders against our penal laws should be punished, yet it is better that one should occasionally escape than that the fundamental principles of the criminal law should be violated”: Commonwealth v. McDonough, supra. In my opinion, the judgment of the court below should be affirmed; but inasmuch as, since it was pronounced, the legislature has so changed the law as to deprive
I concur in the foregoing opinion of Mr. Justice Harrison: De Haven, J.
I concur: Garoutte, J.