29 Conn. 272 | Conn. | 1860
Although it is to be regretted that the legis
By the act of the last session of the legislature repealing said 6th section, a punishment was prescribed for the crime of manslaughter different somewhat from that provided by that section, but as that act is prospective only in that respect and does not therefore apply to the commission of that crime prior to its taking effect, it does not embrace, and consequently provides no punishment for, the act committed by the defendant.
By the 177th section of the act of which the said 6th section is a part, a punishment much lighter than that prescribed in the latter section for manslaughter is provided, “ in all cases of conviction of any person for any high crime and misdemeanor at common law ; ” and it is claimed that the punishment provided by that section attached to it on the repeal of the 6th section.
It is true that manslaughter is here deemed to be a high crime and misdemeanor at common law, and therefore would be embraced by the terms of the 117th section, if there were no other section of the act specifically providing for its punish" ment; and it would seem to be settled by modern decisions that it might, notwithstanding the statutory punishment prescribed by the 6th section, have been prosecuted as an offense at common law, and not contra formam statuti, since the 6th section did not create the offense but only prescribed the punishment of it as a common law offense, and, in the language of Lord Denman, in Regina v. Williams, (14 Law Jour., 164,) “ it is the offense which is the subject of indictment and not the punishment.” Williams v. The Queen, 7 Ad. & El. N. S., 250. Bishop Crim. Law, § 95; and cases there cited. But it has been, as far as we are acquainted, the invariable practice here to prosecute, not only the crime of manslaughter but also those other'various common law offenses for which a specific punishment is prescribed in the several sections of the act concerning crimes and punishments, contra formam statuti, as if they were statutory and not common law offenses, probably
We therefore advise the superior court that the judgment should be arrested.
Ellsworth, J. The prisoner has been convicted of one of
I can not concur with my two brethren, who have arrived, with some hesitation as I understand them, at the conclusion that the conviction can not be sustained. I think that justice can be done and the crime punished, without violating any of the settled principles of law. The prisoner having been fairly convicted, and justly deserving punishment, we are not bound to lean in his favor, or to give him the benefit of every possible doubt which we may entertain upon the questions of law involved in his case.
I concede that, as the former statute has been expressly and unqualifiedly repealed, the prisoner can not be sentenced under that statute. It is very clear that the law under which the punishment is inflicted must be in force at the time of the sentence. I concede also that the prisoner can not be sentenced under the act of 1860. That act is clearly prospective in its terms — “ every person who shall commit manslaughter ” — and of course can not apply to the offense in question, which was committed before the act was passed. Were this all,' I should be of opinion that the prisoner must be discharged. But the offense is one at common law. The statute in force at the time of the commission of the crime did not create it. It did not assume to define it even. It merely provided for its punishment. Nor does the new statute assume to create or to define the offense. Like the former one
We come then to the question, the only one of any difficulty, whether there is any law under which the punishment can be inflicted. It is said that the former statute prescribing a specific punishment so far repealed the common law, and that', while it was in force, the common law punishment could not be inflicted. This is clearly so. It is then said that, when that statute was repealed, another was enacted, prescribing a similar specific punishment for the crime. But the new statute provided for the punishment only of crimes there_ after committed, and of course had no effect upon crimes before committed. These were left to the effect of the common law. As to these, the common law at once revived on the repeal of the statute, and provided the punishment. If the common law would allow a punishment more severe in its character than that which the statute prescribed, it may be very questionable whether a court could inflict a punishment more severe than the statutory one, but so long as the court should keep within the limit of the statute, it is not easy to see why it might not inflict an equal or less punishment, as a common law punishment. It is well settled that a statute changing the punishment of a crime to one of less severity, is not to be regarded, as to an offense committed before the change, as an ex post facto law. And I can see no good reason why the common law, which admitted of a punishment of less severity than that prescribed by the statute, might not, as to such equal or mitigated punishment, be regarded as coming into force and supplying its sanctions, immediately upon the repeal of the statute which in its original enactment had repealed that common law. It is a general principle of universal accepta
I have considered the case thus far with reference solely to the common law. We have however a statute providing generally for the punishment of common law offenses, which has undoubtedly, as to the punishment of these offenses, superseded the common law. It provides that, “ in all cases of conviction of any high crime and misdemeanor at common law, the court before whom such conviction is had may punish the offender at its discretion, either by imprisonment in the Connecticut state prison for a term of not more than five years, or in a common jail for a term not less than two months nor more than one year, and by a fine not exceeding five hundred dollars.” Rev. Stat., tit 6, § 177. The punishment here prescribed, it will be seen, is less than that provided by either the former statute with regard to manslaughter, or by the act of 1860 on the same subject, while the punishment is of the same character (fine and imprisonment,) in them all.
It can perhaps make no difference whether the common law, or this general statute with regard to common law offenses, which may be regarded as superseding the common law, was in force when the former statute on the subject of manslaughter was enacted. Whichever was in force, it was repealed by the statute, and on the repeal of the statute was revived, either in its original form of the common law, or in the form of the general statute which may in the mean time have taken its
The case will be simplified if we consider the repeal of the former statute on the subject of manslaughter as having been made independently of the new enactment on the subject. The new enactment, being confined to future offenses, is of course foreign to the matter of past offenses, like the one in the present case. As an enactment it may therefore be laid out of the case as wholly foreign to it. It is only as a repealing act that it has any application. We are to consider then the former statute as simply repealed, and so left. In this view it becomes very clear that whatever law, whether common law or statute, was repealed or superseded by its enactment, came again into force on its repeal.
I have examined with care the case of Commonwealth v. Marshall, 11 Pick., 350, which was pressed upon us by the counsel for the prisoner, and which is regarded by my brethren as an authority of much weight in support of the conclusion at which they have arrived, but I regard the case as differing from the present one in an important particular. There a statute forbade the disinterment of dead bodies. This statute was held as having abrogated the common law on the subject. After the repeal of the statute, and the enactment of another on the same subject, which applied only to future cases and contained no saving clause as to prior offenses, it was held that a violation of the statute committed before the repeal was not indictable after the repeal, on the ground that the statute was no longer in force, and that the common law, having been superseded by the statute, did not come into force, if at all, until after the crime was committed ; but it is to be observed that the statute there dealt, not as here with the mere punishment of the offense, but with the offense itself-, and that the offense when committed was regarded as a violation of the statute only, which had superseded the common law and which forbade the crime, and not of the common law, which was superseded and abrogated. Of course, if this was so, the subsequent revival of the common law would not
But while I think the present case may be clearly distinguished from the one here referred to, I am free to say that I am by no means satisfied with the reasoning of the court in that case.
In my opinion-the judgment against the prisoner should not be arrested.
Advice that judgment be arrested.