95 N.W. 513 | N.D. | 1903
The defendant was convicted of the crime of murder in the first degree for the killing on August 26, 1902, of Harold C. Sweet. On March 9, 1903, chapter 99, Laws 1903. went into effect, changing the former statute as to place of inflicting the death penalty from the county jail to the penitentiary, and extending the time after sentence within which the judgment of death should be carried out. On March 31, 1903, defendant was sentenced to be conveyed to the penitentiary of the state of North Dakota, at Bis
Appellant insists that the law in force at the time of the offense for which he was convicted has been repealed, and that he cannot be punished under it, and that the statute (chapter 99, Laws 1903) as applied to his offense, is ex post facto, unconstitutional, and void; that he cannot, therefore, be punished under the provisions of that statute; that there is no law in this state under which the death penalty can be inflicted upon him; and that he must be discharged.
By the statute in force at the time of the homicide for which appellant stands convicted, and also at the time of his trial and conviction, it was provided: “Every person convicted of murder in the first degree shall suffer death or be imprisoned in the penitentiary for life.” Section 7068, Rev. Codes 1899. “The jury before whom any person prosecuted for murder is tried, shall, if they find such person guilty thereof, fix and determine by their verdict, the punishment to be inflicted, within the limits prescribed by law, as for example, if they find such person guilty of murder in the first degree, they must designate in their verdict whether he shall be punished by death or imprisonment in the penitentiary for life.” Section 7073, Rev. Codes 1899. - “The jury before whom any person prosecuted for murder is tried, shall, if they find such person guilty thereof, determine by their verdict, whether it is of murder in the first degree or of murder in the second degree.” Section 7072, Rev. Codes 1899. “Whenever any person is convicted of murder by the verdict of a jury, it shall be the duty of the court to enter judgment against such person, in accordance with such verdict, or otherwise as provided by section 8247 of the Code of Criminal Procedure.” Section 7074, Rev. Codes 1899. Section 8319 provides that “the punishment of death must be inflicted by hanging the defendant by the neck until he is dead.” -By section 8321 it is provided that “a, judgment of death must be executed within the walls or yard of the jail of the county in which the conviction was had, or within some convenient enclosure within said county.” Section 8320 provided: “When ihere is no jail within the county, or whenever the officer having in charge any person under the judgment of death, deems the jail of the county where the conviction was had, insecure, unfit or unsafe for any cause, such officer may confine such person in the jail of any other convenient county of the state.” Section 8305, Rev. Codes
The legislative assembly passed an act, which was signed and approved on the 9th day of March, 1903, after the trial and conviction,, but before the sentence, of appellant, the title of which act is “An act defining the mode of inflicting the death penalty; designating the warden of the North Dakota penitentiary executioner; prescribing that the death penalty shall only be inflicted within the walls, of the North Dakota penitentiary; how execution may be suspended, and amending sections 8305 and 8308, of the Revised Codes of North Dakota of 1899.” This act is known as chapter 99, Laws 1903. Section 1 of this act provides that “The mode of inflicting the punishment of death shall be by hanging by the neck until the person 'is dead; and the warden of the North Dakota penitentiary,, or in case of his death, inability, or absence, a deputy warden shall be the executioner; that the punishment shall be inflicted within the walls of the penitentiary at Bismarck, within an enclosure -to be-prepared for that purpose under the direction of the warden and the-board of trustees.” Section 2 provides that “executions of the death penalty by hanging shall take place on the day designated by the-judge passing sentence, but before the hour of sunrise of the-designated day.” Section 3 provides that “all writs for the execution of the death penalty shall be directed to the sheriff by the' court: issuing them, and the sheriff of the county wherein the prisoner has-been convicted and sentenced, shall, within ten days thereafter, convey the prisoner to the penitentiary, where he shall be received by the-warden or keeper, and kept in close confinement until the day designated for the execution; that a certified copy of the judgment and warrant to execute- shall be delivered to the warden, and a receipt-taken from the warden for the prisoner.” Section 14 of this act reads “that section 8305 of the Revised Codes of 1899, relating to judgment of death,.warrant to execute, be amended so as to read as follows: ‘Section 8305. When the judgment of death is rendered the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk under the seal of the court, stating-
It is apparent from the emergency clause (section 17 of this act) that the legislative assembly intended to have the same take effect at once, upon its passage, and that its terms should control in the pronouncing and execution of judgments of death in cases where the crime of murder in the first degree had been committed prior to its passage,and approval. As to offenses committed subsequent to its approval, no constitutional objection can be urged against this legislation. But as to appellant, it is contended that this act changes the punishment so that a different penalty may be inflicted, under the operation of this act, from that which could have been inflicted upon him under the-law as it existed at the time his offense was committed; that this later act increases the punishment, and therefore is a change to the disadvantage of the convict; and, for this reason, that chapter 99, Laws 1903, as applied to him, is ex post facto and void.
The law as contained in the Rev. Codes of 1899, and as it was prior to the sentencing of the appellant, is changed by the later act in three particulars: First. The execution of the death penalty must take place in the penitentiary, and be inflicted by the warden or his deputy, and not by the sheriff in the county where the offense was committed. Second. The time appointed for execution is changed so that the convict may be allowed a longer time to live between his sentence and his execution; the time fixed to be not less than six
The question for determination is this: Was the statute (chapter 99, Laws 1903) under which this judgment was entered ex post facto and void, as applied to appellant? The passage of ex post facto laws is inhibited by both the federal and the state constitutions. The section of the federal constitution (section 10, article 1), towit, “No state shall pass any ex post facto law,” has been frequently considered and expounded by the Supreme Court of the United States, and its interpretation of this supreme law of the land is binding upon this tribunal. The court has said: “The plain and obvious meaning and intention of the prohibition is this: that the legislatures of the several states shall not pass laws, after a fact done by a subject or citizen, which shall have relation to such fact, and shall punish him for having done it. The prohibition considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation.” Calder v. Bull, 3 Dall. 386, 390 1 L. Ed. 648. Justice Chase, in enumerating what laws he considered ex post facto, within the rules and intent of the prohibition, specified “every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed.” Colder v. Bull, 3 Dall. 390, 1 L. Ed. 648; Cooley, Const. Lim. 322. “But,” he added, “I do not consider any law ex post facto, within the prohibition, that mollifies the- rigor of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction.” Justice Washington declared ex post facto any law “which, in its operation, makes that criminal or penal which was not so at the time the act was performed, or which increases the punishment, or, in short, which, in relation to the offense or its con sequences, alters the situation of a party to his disadvantage.” U. S. v. Hall, 26 Fed. Cas. 84, affirmed in 6 Cranch, 171, 3 L. Ed. 189; Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; in re Medley, 134 U. S. 160; 10 Sup. Ct. 384, 33 L. Ed. 835; Garvey v. People. 6 Colo. 559, 45 Am. Rep. 531; People v. McNulty (Cal.) 28
The words “close confinement,” as used in the statute and sentence, mean that the convict shall be safely and securely kept in confinement pending the execution of the judgment of death. They add nothing to the rigor of the former statute (section 8320, Rev. Codes 1899), which permitted the officer having in charge one under judgment of death, when he deemed the jail insecure or unsafe, to confine such person in any other jail of the state where he could be safely and securely confined; safety and security, through confinement, being the unchanged purpose of both statutes. Neither before nor since the act of March 9th could one convicted of a capital offense be admitted to bail. Appellant is entitled to as many privileges now, in the penitentiary, as the sheriff, under the former law, could accord to him in the county jail. No additional restrictions are placed upon his seeing his legal or spiritual adviser or members of his family. This statute works no change, in so far as it describes his confinement as close; nor is the word “close” synonymous with the word “solitary,” as the latter term is used in the Medley case. It is there pointed out that the word “solitary” has a well defined and well understood legal significance. The change made in the Colorado statute, considered by the Supreme Court in the; Medley case, was from a close confinement in the jail where the convict could be visited ’ in the place of his confinement by his family, his legal, spiritual or medical adviser, without restriction, to solitary confinement, ' which excluded the possibility of such visits, and inhibited them, except under the restrictions of prison rules, which might prohibit them altogether.
The contention here made that appellant’s confinement in the penitentiary is necessarily and in fact solitary — that, under the law regulating the control of convicts in the penitentiary, and the rules of prison discipline in this state, he is shut out from seeing all human
That the penitentiary is in another part of the state from the county in which he was tried, and that he is thus further removed from possible visits of friends, is of no importance. He could, under the former statute, be removed to< and confined in a jail in another part of the state. Section 8320, Rev. Codes 1899. The fact that the place of his confinement has been changed from the county jail to the penitentiary, pending execution, and that the place of execution has also been changed, does not render the 1903 statute .ex post facto. The law has at all times required the confinement of persons convicted of capital offenses between the time of sentence and execution. The purpose of the confinement is that the 'convict may be produced at the time set for 'his execution, and that society may be protected against an outlaw in the meantime. The confinement is no part of the punishment, but is an incident connected therewith, referable to penal administration as its primary object. In re Tyson, 13 Colo. 487, 22 Pac. 810, 6 L. R. A. 472; Hartung v. People, 22 N. Y. 95; Gut v. State, 9 Wall. 35, 19 L. Ed. 573. In Holden v. State, 137 U. S. 483, 11 Sup. Ct. 143, 34 L. Ed. 734, it is said: “There is no ground upon which it can be held that his mere imprisonment in execution of the sentence of death is in violation of the constitutional provision against ex post facto laws. The sentence, the subsequent imprisonment under it, not in solitary confinement, and the warrant of execution, are in accordance with the law of the state as it was when the offense was committed, and do not infringe any right secured by the constitution of the United States.” The Medley case, 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835, is not authority for the proposition urged that confinement in the penitentiary, instead of the county jail, pending his execution, is an aggra
The language used by Justice Gray, in the Medley case, characterizing the penitentiary as a place for the punishment of infamous crimes, is used in his demonstration of the proposition that solitary confinement in the penitentiary of the convict, where he was cut off from the visits of his spiritual and his legal adviser and of' friends, was an additional infliction to confinement in the jail, where-he could have been so visited, and where such restrictions were not imposed; and it seems clear from the context that it was not the-intention to, nor does the opinion, declare that change of the place: of confinement from a county jail to the penitentiary, of one already rendered infamous by conviction of the felony punishable by death,, could be treated as an aggravation of punishment, in that it carries, with it disgrace and infamy.
That the 1903 statute requires the day of execution to be fixed at not less than six nor more than nine months after the pronouncing-of judgment has the effect to add a period of imprisonment to the death penalty, and that appellant is condemned, under its operation,, to nine day’s imprisonment beyond what could have been given him under the law in force when his crime was committed, does not-render the law ex post facto as to him. The law fixing the punishment for murder in the first degree was, at the time this homicide was committed, and it is now, the same. It has been in no way-changed. The mode of inflicting the death penalty was then, and is now, by hanging the convict by the neck until dead. The changes, effected have reference only to'the mode of carrying out the sentence, and do not affect the substantial rights of the convict. Holden v. State, 137 U. S. 483, 11 Sup. Ct. 143, 34 L. Ed. 734. “Any change which is referable to prison discipline or penal administration-as its primary object may be made to take effect upon past as well as future offenses, such as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision,, the means of restraint, or the like changes of this sort, may opératelo increase or mitigate the severity of the punishment of the convict,, but will raise no question under the constitutional provision we are
The Medley case, cited by appellant, is not authority to support his. contention that this change increases his punishment to his disadvantage. In that case, one section of the Colorado statute under review permitted the warden of the penitentiary to fix the day (and. that within the week designated by the court’s sentence) when death, should be inflicted. The prisoner could not be advised of the day and hour of his death until called upon to face it. The prisoner’s feeling-of uncertainty as to the time when he would be called to the scaffold was an infliction not contemplated by the former law. But under the statute we are considering, accused is advised, by the sentence,, as to the precise day when he will be executed, and there is no-chance for such uncertainty. That the day of his death is postponed by operation of this statute cannot be considered as a prolongation, of the suffering and therefore added punishment. It is believed that, the common instinct of mankind, when sane, is in favor of life and its prolongation. Death is the extreme penalty that can be inflicted-Any- change of the penalty short of that is considered a mitigation, and postponement of the time of its infliction is also a mitigation.
In Com. v. Gardner, 11 Gray 438, it is said: “The substitution, of imprisonment for life in place of death is a mitigation in the eye-of the law. It is everywhere so regarded. It is on that ground thatdhe executive-power of commutation is founded. The statute-proceeds on the same ground.” In Com. v. Wyman, 12 Cush. 239, it is said: “An act plainly mitigating the punishment of an offense-is not ex post facto. On the contrary it is an act of clemency. A. law which changes the punishment from death to imprisonment for life is a law mitigating the punishment, and therefore is not ex post facto.” Judge Cooley in his work on Constitutional Limitations, section 272, says: “The substitution of any other punishment for-that of death must be regarded as a mitigation of the penalty.” In the Tyson case, 13 Colo. 482, 488, 22 Pac. 810, 6 L. R. A. 472, this-point was under consideration. The court said: “If, under this act, the convict might be hanged within less than the minimum of' time from the date of passing sentence enjoined by the former statute,, we would unhesitatingly say that the law could not be made applicable to this case, as to hold otherwise would be contrary to the rule-prohibiting a change of punishment to the disadvantage of the de—
Counsel insist that it is not for the court to say that the nine days ■of additional life extended appellant before his execution is not an increase of punishment, or to declare it a mitigation of the penalty; •that it is a change of the punishment, and substitution of a different
We have not overlooked the McNulty case (Cal.) 28 Pac. 816, in examining these questions. That court’s opinion upon the points 'here involved was controlled by its interpretation, and, we think, in some respects, a misinterpretation and misapplication, of the opinion of the Supreme Court of the United States in the Medley case. The 'California court finally succeeded, after several hearings, in reaching a conclusion in accord with the sentiments of Justices Brewer and Bradley, “whereby a convicted murderer was not permitted to escape the death he deserved, and to be turned loose on society.” People v. McNulty, 93 Cal. 427, 29 Pac. 61, 26 Pac. 598, 28 Pac. 816.
Our conclusion is that the statute is not vulnerable to the constitutional objections urged against it; that it was within the power