Lead Opinion
The opinion of the Court was delivered by
The defendant was indicted and tried in July, 1912, for the murder of Prentiss Moore, on the 24th of November, 1910, and the jury rendered a verdict of guilty; whereupon the Court sentenced him to be electrocuted on the 9th of August, 1912, in the manner provided by the act, approved the 17th of February, 1912, which will be incorporated in the report of the case, together with section 946 of the Criminal Code of 1912, which prescribes the manner in which a person shall be hanged.
Section 109, Criminal Code of 1902, is as follows: “Whoever is guilty of murder, shall suffer the punishment of death: Provided, however, That in each case, where the prisoner is found guilty of murder, the jury may find a special verdict, recommending- him or her, to the mercy of the Court, whereupon the punishment shall be reduced to imprisonment in the penitentiary, with hard labor, during the whole lifetime of the prisoner.” .
Prior to the act of 1912, the mode of execution, when the prisoner was sentenced for murder, was by hanging.
*446
In Cooley’s Constitutional Limitations, pages 319-320, the author quotes with approval, the following language of Chase, J., in the leading case of
Calder
v.
Bull,
In the case of
King
v.
State,
In that case the Court quoted with approval, the following language from the case of
Hartung
v.
People,
The Court also- quoted with approval the following language of Mr. Justice Washington, in United States v. Hall, 2 Wash. C. C. 366 : “An ex post facto law is one which in its operation, makes that criminal, which was not so, at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party, to his disad vantage.”
In Murphy v. The Commonwealth, 43 L. R. A. (Mass.) 154, it is said: “The objection to ex post facto legislation, consists in the uncertainty, which would be introduced thereby, into legislation of a criminal or penal character, and the injustice of punishing an act, which was not punishable when done, or, of punishing it in a different manner than that, in which it was punishable when done.
“But not all retroactive legislation is unconstitutional, as being
ex post facto.
The question in each case is-, whether it will increase the penalty or operate to deprive a party of substantial rights or privileges, to which he was entitled, when the offense was committed; or, in short, in relation to the offense and its consequences, will alter the situation, of a party, to his disadvantage.” See, also, notes to1 the case
*448
of
Rooney
v.
North Dakota,
A statute which merely regulates the manner, in which the execution shall be conducted, by prescribing the time and manner of the execution, and the number and character of the witnesses, is not
ex post facto,
though it applies to offenses committed before its enactment.
Holden
v.
Minnesota,
“The objection that the later law required the execution of the sentence of death, to take place within- the limits of the penitentiary, rather than in the county jail, as provided in the previous statute, is without merit. However, material the place of confinement may be, in case of some crimes not involving life, the place of execution, when the punishment is death within the limits of the State, is of no' practical consequence to' the criminal. On such a motion he is not entitled to be heard.”
Rooney
v.
North Dakota,
The foregoing authorities sustain the proposition, that the punishment prescribed by law for- an offense, at the time it was committed, can not be changed by subsequent legislation, unless the change is advantageous to' the prisoner.
The appellant’s attorneys argued, that the act of 1912 was unconstitutional, by reason of the fact, that the place of execution, and the number of witnesses permitted or required by the act of 1912, were changed to the disadvantage of the defendant. The foregoing authorities, also, show, that these objections are untenable. In the language of Mr. Cooley in his excellent work entitled 'Constitutional Limitations 322: “We have no doubt, the privileges the respondent claims, were designed and created solely, as incidents of the severe punishment, to which his offense formerly subjected him, and not as incidents- of the o-ff.ense.” In this respect the statute is analogous to those, which relate to penal administration or prison discipline, and are not unconstitutional, even though the effect may be to enhance
*449
the severity of the confinement.
Murphy
v.
Commonwealth,
We now come to the pivotal question, whether the act of 1912 changing- the punishment for murder from death by hanging to death by electrocution, shows that its tendency is to ameliorate the punishment by hanging.
In the case of
In re
Kemmler,
The first step which led to- the enactment of the law in that State, was the message of the Governor, in which he said: “The present mode of executing criminals by hanging, has come down to us from the dark ages, and it may well be questioned, whether the science of the present day, can not provide a means, for taking the life of such as are condemned to die, in a less barbarous manner. I commend this suggestion to1 the consideration of the legislature.” The legislature accordingly, appointed a commission to investigate and report “the most humane and practical method known to modern science, of carrying into effect the sentence of death in capital cases.” This commission reported in favor of execution by electricity. They also reported a proposed bill, which was enacted. Mr. Chief Justice Fuller, in delivering the opinion of the Court, said: “Punishments are cruel, when they involve torture, or a lingering death; but the punishment of death is not cruel, within the meaning of that word, as used in the Constitution. It implies there something inhuman and barbarous' — something more than the mere extinguishment of life. The Courts of New York held, that the mode adopted in this instance, might be said to be unusual, because it was new, but that it could not *450 be assumed to- be cruel, in the light of that common knowledge, which has stamped certain punishments as- such; that it was for the legislature to- say, in what manner sentence of. death should be executed; that this act was passed, in the effort to devise a more humane method of reaching the result; that the Courts were bound to- presume, that the legislature was possessed of the facts, upon which it took action; and that by evidence aliunde the statute, that presumption could not be overthrown. They went further, and expressed the opinion, that, upon the evidence the legislature had attained by the act, the object had in view, in its passage. * * * Treating it as involving an adjudication, that the statute was not repugnant to the Federal Constitution, that conclusion was so- plainly right, that we should not be justified in allowing the writ, upon the- ground that error might have supervened therein. * * * The enactment of this statute was, in itself, within the legitimate sphere of the legislative power of the State, and in the observance of those general rules, prescribed by our systems of jurisprudence; and the legislature of the State of New York, determined that it did not inflict cruel and unusual punishment, and its Courts have sustained that determination. We can not perceive that the State has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process o-f law.
“In order to reverse the judgment of the highest Court o-f the State of New York, we should be compelled to hold, that it had committed an error, so- gross, as to amount, in law, to a denial by the State, of due process of law, to- one accused of crime, or of some right secured to- him, by the Constitution of the United States.
“We have no- hesitation in saying, that this we can not do, upon the record before us.” The writ o-f error was accordingly denied.
It is true the provision of the United States Constitution now under consideration, was not before the Court in that *451 case, but the decision clearly shows, that the Court regarded electrocution, as a more humane method of punishment, than that by banging. It would have been surprising if the Court had reached any other conclusion, after .considering the manner in which an execution by hanging is conducted. The rope around the prisoner’s neck must be of the proper length, and so adjusted that when he drops from the scaffold, his neck will be broken, thus destroying the structural formation of the body. But suppose the rope is not of the proper length, or the noose is not properly adjusted, then there are instances on record, where the head was completely severed from the body, when the convict dropped from the scaffold. There are also1 numerous instances, where the neck was not broken, and the convict died of strangulation, after several minutes of consciousness. We merely mention the agony, which must have been suffered, during strangulation as indicated by the bulging eyes, and draw the curtain over such a picture. Suffice it to> say, that this Court is satisfied, that electrocution is a more humane method of execution than by hanging.
The exception raising this question, is, therefore, overruled.
The ruling of the Court upon the former appeal in this case, shows that the first, second and third exceptions can not be sustained.
The fourth exception has already been considered.
*452
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Circuit Court, for the purpose o-f having another day assigned, for carrying into' execution the sentence of the Court.
Dissenting Opinion
dissenting. Early in the morning o-f 24th November, 1910, Guy Rogers, a youth of about seventeen years, and his friend, Prentiss Moore, several years younger, left the homes of their parents, in Bennettsville, fora morning’s hunt, with the- expectation of returning in time for dinner. Upon their failure to return, the community united in a long and harrowing search, which resulted in finding the bodies of both the boys in a ditch about eleven hundred yards from the house of the defendant.
Prentiss Moore was killed by a gunshot wound in the back near the shoulder blade. The facts that the shot were somewhat scattered, and that there were no- powder burns indicated that the shot' was fired at least a little distance off. While the wound was necessarily fatal, some minutes might have intervened before death. The gunshot which killed Guy Rogers seems to' have entered, in almost a solid mass, in front near the left nipple, making powder marks on the *453 body, and leaving the gun wad sticking to> the wound. Death must have been almost instantaneous. The body of Guy Rogers was lying in the ditch, and that of Prentiss Moore leaning against the side of the ditch. The one double-barrel shotgun which the boys had was lying on the side of the ditch, and near by was an empty shell.
The defendant was indicted and tried for the murder of Gay Rogers, and this appeal is from his conviction and sentence to death.
I concur in the reasoning and the conclusions of the Chief Justice as. to- all the exceptions except the fifth.
The witness, Charlotte Easterling, as. was agreed on all sides, was utterly discredited by her numerous contradictions of herself. These contradictions culminated in her testifying at the trial to- a confession of the defendant, and then confessing in private to the solicitor and on the stand that no. confession had been made to her. The witness, Stephen Toms, then testified to. confessions, made to1 him, and was allowed to. bolster up his statement by stating that at a certain time and place he had told one Collins of the' defendant’s confession. This testimony was. clearly incompetent.
State
v. Thomas, 3 Strobh. 269;
State
v.
Scott,
15 S. C. 434; State v.
Gilliam,
66 S. C. 419,
It seems to me that careful consideration of the evidence is convincing that the tragedy was one of deep mystery — • requiring on the part of the jury most careful and anxious *454 consideration of every particle of evidence before they could reach a verdict. They had to- answer these serious questions : Were the boys murdered and thrown- into- the ditch, or was the tragedy due to- an unusual and unexplainable accident? Was there any sufficient motive for the defendant to commit such a dreadful and monstrous crime? Were the circumstances proved by creditable testimony affecting the defendant not consistent with his. innocence? Were the confessions attributed to- defendant really made -by him, or were the witnesses who- testified to them shown to be unworthy of belief? It cannot be doubted that the- testimony as to the confessions was the strongest adduced against the defendant; and when the character of the witnesses from which this testimony came- is considered, the conclusion-seems irresistible- that it was the right of the defendant to have excluded all incompetent testimony as to the confessions imputed to- him, and denied by him, which may have contributed to- the verdict.
This Court has set its face against technical objections- to testimony and appeals depending on errors which do not affect the merits. But I am forced to- the conclusion that in a case so full of mystery, justice- requires that no material testimony set down by the law as incompetent should be admitted to- effect the conclusion o-f the jury.
For this reason, I think the judgment should be reversed and the cause- remanded for a new trial.
This case was held up on petition for writ of error to United States Supreme Court. — Reporter. .