Wilkerson v. Utah

CourtUnited States Supreme Court
Citation99 U.S. 130,25 L.Ed. 345
PartiesWILKERSON v. UTAH
Decision Date01 October 1878

ERROR to the Supreme Court of the Territory of Utah.

The facts are stated in the opinion of the court.

Submitted by Mr. E. D. Hoge and Mr. P. L. Williams for the plaintiff in error, and by The Solicitor-General for the defendant in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Duly organized Territories are invested with legislative power, which extends to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. Rev. Stats., sect. 1851.

Congress organized the Territory of Utah on the 9th of September, 1850, and provided that the legislative power and authority of the Territory shall be vested in the governor and legislative assembly. 9 Stat. 454.

Sufficient appears to show that the prisoner named in the record was legally charged with the wilful, malicious, and premeditated murder of William Baxter, with malice aforethought, by indictment of the grand jury in due form of law, as fully set forth in the transcript; and that he, upon his arraignment, pleaded that he was not guilty of the alleged offence. Pursuant to the order of the court, a jury for the trial of the prisoner was duly impanelled and sworn; and it appears that the jury, after a full and fair trial, found, by their verdict, that the prisoner was guilty of murder in the first degree.

Regular proceedings followed, and the record also shows that the presiding justice in open court sentenced the prisoner as follows: That 'you be taken from hence to some place in this Territory, where you shall be safely kept until Friday, the fourteenth day of December next; that between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of the last-named day you be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead.'

Proceedings in the court of original jurisdiction being ended, the prisoner sued out a writ of error and removed the cause into the Supreme Court of the Territory, where the judgment of the subordinate court was affirmed. Final judgment having been rendered in the Supreme Court of the Territory, the prisoner sued out the present writ of error, the act of Congress providing that such a writ from this court to the Supreme Court of the Territory will lie in criminal cases where the accused is sentenced to capital punishment or is convicted of bigamy or polygamy. 18 Stat. 254.

Appended to the proceedings is the assignment of error imputed to the court below, which is repeated in the same words in the brief of his counsel filed since the case was removed into this court. No exception was taken to the proceedings in either court prior to the sentence, the assignment of error being that the court below erred in affirming the judgment of the court of original jurisdiction and in adjudging and sentencing the prisoner to be shot to death.

Murder, as defined by the Compiled Laws of the Territory, is the unlawful killing of a human being with malice aforethought, and the provision is that such malice may be express or implied. Comp. Laws Utah, 1876, 585. Express malice is when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature, and it may be implied when there is no considerable provocation, or when the circumstances attending the killing show an abandoned or malignant heart.

Criminal homicide, when perpetrated by a person lying in wait, or by any other kind of wilful, deliberate, malicious, and premediated killing, or which is committed in the perpetration or attempt to perpetrate any one of the offences therein enumerated and evidencing a depraved mind, regardless of human life, is murder in the first degree. Id. 586.

Provision is also made that every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, at the discretion of the court; and that every person guilty of murder in the second degree shall be imprisoned at hard labor in the penitentiary for not less than five nor more than fifteen years. Comp. Laws Utah, 1876, 586.

Duly convicted of murder in the first degree as the prisoner was by the verdict of the jury, it is conceded that the existing law of the Territory provides that he 'shall suffer death;' nor is it denied that the antecedent law of the Territory which was in force from March 6, 1852, to March 4, 1876, provided that 'when any person shall be convicted of any crime the punishment of which is death, . . . he shall suffer death by being shot, hung, or beheaded, as the court may direct,' or as the convicted person may choose. Sess. Laws Utah, 1852, p. 61; Comp. Laws Utah, 1876, 564.

When the Revised Penal Code went into operation, it is doubtless true that it repealed that provision, as sect. 400 provides that 'all acts and parts of acts' heretofore passed 'inconsistent with the provisions of this act be and the same are hereby repealed.' Comp. Laws Utah, 651.

Assume that sect. 124 of the prior law is repealed by the Revised Penal Code, and it follows that the existing law of the Territory provides that every person guilty of murder in the first degree shall suffer death, without any other statutory regulation as to the mode of executing the sentence than what is found in the following enactment of the Revised Penal Code. Sect. 10 provides that 'the several sections of this code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed.' Comp. Laws Utah, 1876, 567.

Construed as that provision must be in connection with the enactment that every person guilty of murder in the first degree shall suffer death, and in view of the fact that the laws of the Territory contain no other specifie regulation as to the mode of executing such a sentence, the court here is of the opinion that the assignment of error shows no legal ground for reversing the judgment of the court below. Authority to pass such a sentence is certainly not possessed by the circuit courts of the United States, as the act of Congress provides that the manner of inflicting the punishment of death shall be by hanging. Rev. Stat., sect. 5325.

Punishments of the kind are always directed by the circuit courts to be inflicted in that manner, but organized Territories are invested with legislative power which extends to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. By virtue of that power the legislative branch of the Territory may define offences and prescribe the punishment of the offenders, subject to the prohibition of the Constitution that cruel and unusual punishments shall not be inflicted. Story, Const. (3d ed.), sect. 1903.

Good reasons exist for supposing that Congress never intended that the provision referred to, that the punishment of death shall be by hanging, should supersede the power of the Territories to legislate upon the subject, as the congressional provision is a part of the first crimes act ever passed by the national legislature. 1 Stat. 114. Different statutory regulations existed in the Territory for nearly a quarter of a century, and the usages of the army to the present day are that sentences of the kind may in certain cases be executed by shooting, and in others by hanging.

Offences of various kinds are defined in the rules and articles of war where the offender, if duly convicted, may be sentenced to the death penalty. In some of those cases the provision is that the accused, if convicted, shall suffer death, and in others the punishment to be awarded depends upon the finding of the court-martial; but in none of those cases is the mode of putting to death prescribed in the articles of war or the military regulations. Art. 96 provides that no person shall be sentenced to suffer death except by the concurrence of two-thirds of the members of a general court-martial, and in the cases specified in the rules and articles enacted by Congress. Rev. Stat., p. 238.

Repeated instances occur where the death penalty is...

To continue reading

Request your trial
260 cases
  • Roberts v. Louisiana 30 31, 1976
    • United States
    • United States Supreme Court
    • July 2, 1976
    ...this Court's opinions, if they did not squarely uphold the death penalty, consistently assumed its constitutionality. Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 ......
  • People v. Cisneros
    • United States
    • Supreme Court of Colorado
    • July 6, 1993
    ...Eighth Amendment challenge to provision of New York statute authorizing death by electricity for convicted murderers); Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879) (rejecting Eighth Amendment challenge to provision of Utah territorial statute authorizing judicial designation of death......
  • DeShields v. State
    • United States
    • United States State Supreme Court of Delaware
    • May 27, 1987
    ...death" or unneeded "terror, pain, or disgrace." In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. (9 Otto) 130, 25 L.Ed. 345 (1879). Nor has DeShields offered any evidence to establish that the procedures for hanging are so susceptible to accidents r......
  • Ali v. Rumsfeld
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 2011
    ...of the Eighth AmendmentPage 34since the nineteenth century. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citing Wilkerson v. Utah, 99 U.S. 130, 136 (1879)). Congress has also prohibited torture that occurs abroad, making such conduct a federal crime punishable by fines and up to 20 years of ......
  • Request a trial to view additional results
19 books & journal articles
  • THE REASONABLENESS OF THE "REASONABLENESS" STANDARD OF HABEAS CORPUS REVIEW UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996.
    • United States
    • Case Western Reserve Law Review Vol. 72 No. 3, March 2022
    • March 22, 2022
    ...Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."); Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878) ("Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to sh......
  • Cruel and Unusual Non-Capital Punishments
    • United States
    • American Criminal Law Review No. 58-4, October 2021
    • October 1, 2021
    ...state court to choose the execution method for a capital offense among the options of shooting, hanging, or beheading. Wilkerson v. Utah, 99 U.S. 130, 136–37 (1878). 13. Weems, 217 U.S. at 357–58. The Court described cadena temporal as a form of hard labor. Id. at 364 (“They shall always ca......
  • Can Congress overturn Kennedy v. Louisiana?
    • United States
    • Harvard Journal of Law & Public Policy Vol. 33 No. 3, June 2010
    • June 22, 2010
    ...were primarily concerned, however, with proscribing 'tortures' and other 'barbarous' methods of punishment."); Wilkerson v. Utah, 99 U.S. 130, 136 (1878); Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 CAL. L. REV. 839, 839-44 (1969); John F. St......
  • A Needle in the Haystack: Finding a Solution to Ohio's Lethal Injection Problems
    • United States
    • Capital University Law Review No. 38-3, May 2010
    • May 1, 2010
    ...American founders who were primarily 8 Id . at 1526–27. 9 Welsh-Huggins, supra note 4. 10 U.S. CONST. amend. VIII. 11 Wilkerson v. Utah, 99 U.S. 130, 136 (1878). 12 Baze , 128 S. Ct. at 1529 (citing Robinson v. California, 370 U.S. 660, 666 (1962)). 13 Gregg v. Georgia, 428 U.S. 153, 169 (1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT