Marion v. The State

• Decision Date: 01 July 1884
• Citation: 20 N.W. 289,16 Neb. 349
• Parties: JACKSON MARION, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 289

16 Neb. 349

JACKSON MARION, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1884

ERROR to the district court for Gage county. Tried below before DAVIDSON, J.

REVERSED AND REMANDED.

Colby Hazlett & Bates, for plaintiff in error.

R. W Sabin, District Attorney, and Isaac Powers, Jr., Attorney General, for the state.

OPINION

REESE, J.

On the 20th day of April, 1883, the plaintiff in error was indicted by the grand jury of Gage county for the murder of John Cameron, on the 15th day of May, 1872. The trial on the indictment resulted in a verdict of guilty of murder in the first degree, and the sentence of death was pronounced upon the plaintiff in error by the court. From this judgment and sentence he prosecutes a writ of error to this court.

At the very threshold of this case we encounter a fatal error in the proceedings, and one which appears to have escaped the attention of the court and all the counsel engaged in the trial of the cause, but which must not be overlooked by this court. "No act which a court can be called on to perform is more grave and solemn than to render a capital judgment. To perform such a duty a judge is reconciled only by the consideration that it is not he who does it, but the law , of which he is simply the minister. But if the law invests him in the particular case with no such power, he may well deliberate and must refuse to exercise it." United States v. Yellow Sun, 1 Dill. 271.

At the time of the alleged commission of the crime the law of Nebraska upon the subject of murder was quite different from what it is now and was at the time of the indictment and trial of plaintiff in error, and by that law he must be tried.

By section eighteen of the criminal code which was in force at the time of the alleged killing, murder is declared to be "the unlawful killing of a human being, with malice aforethought, either express or implied." By that law there are no "degrees" of murder, the killing, if felonious, being either murder or manslaughter. By the law under which the plaintiff in error was tried, murder is divided into two degrees, murder in the first degree and murder in the second degree. By section three of the criminal code of 1873, murder in the first degree is in substance (as applicable to cases of this kind), the killing of another purposely, and of deliberate and premeditated malice; and murder in the second degree may be said to consist in killing another purposely and maliciously, but without deliberation and premeditation. Manslaughter may, for the purposes of this case, be treated as the same under both codes, although somewhat different.

In accordance with the requirements of the law under which the defendant was tried, the court gave to the jury this instruction: "12. If you find the defendant guilty of the murder charged, then it will be your duty to also return in your verdict whether he is guilty of murder in the first degree--that is, purposely and of deliberate and premeditated malice; or whether he is guilty of murder in the second degree--that is, purposely and maliciously, but without deliberation and premeditation; or whether he is guilty of manslaughter--that is, that he unlawfully killed the deceased without malice." This, as we have seen, was an incorrect definition of the crime. But it was not only an incorrect definition of the crime of murder, but it withheld from the jury the duty of fixing the punishment or penalty to be inflicted upon the plaintiff in error. By section one of an act approved February 15th, 1869, which was amendatory of section 20 of the criminal code, page 595 of the Revised Statutes, it was provided that the punishment of any person or persons convicted of the crime of murder shall be death or imprisonment in the penitentiary for life, and the jury trying the case shall fix the penalty. In this case the plaintiff in error was deprived of a right guaranteed to him not only by the constitution and laws of this state, but by the constitution of the United States.

It is one of the fundamental principles of this government that no person shall be punished for an act which was not criminal at the time the act was committed, nor for an act which is made criminal in any other or greater degree, or the punishment of which is materially changed after the commission of the act; and so carefully have the rights of the citizen been guarded in this respect, it has been incorporated in the organic law of the nation, and by section ten of article one of the constitution of the United States, the states are prohibited from passing any ex post facto law. It cannot be doubted but that the law relating to the crime of murder which became the law of this state on the first day of September, 1873, was, so far as it related to acts done before it took effect, ex post facto, and unless some provision was made for cases of this kind no punishment could be inflicted for such acts. In Calder v. Bull, 3 Dall. 386, the supreme court of the United States have decided that the plain and obvious meaning and intention of this prohibition in the constitution is, that the legislatures of the several states shall not pass laws after a fact done by a citizen or subject which shall have relation to such fact; and in writing the opinion of the court in that case Chase, J., says: "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender. All these and similar laws are manifestly unjust and oppressive." This construction of the constitutional provision under consideration has been accepted and followed by the courts ever since the decision was made, and is now the settled law of the land; and hence it would seem that little need be said by way of applying the principles there laid down to this case. It is very evident that the law under which the plaintiff in error was tried "inflicts a greater punishment than the law annexed to the crime when committed." By that law the punishment was either death or imprisonment. By the later enactment it is death. By that law the party charged had the right to have the jury pass upon the question as to whether he should live or die. By the later act, if found guilty, he is deprived of his life, and the jury by whom he is tried have nothing to say upon the subject of what his punishment shall be. This right being his at the time of the alleged act, he cannot be deprived of it by a law subsequently passed.

In Kring v. The State, 16 Central Law Journal p. 308 the supreme court of the United States has recently held that (quoting from the syllabus): "Any law is an ex post facto law, within the meaning of the constitution, passed after the commission of a crime charged against a defendant, which, in relation to that offense or its consequences, alters the situation of the party to his disadvantage; and no one can be criminally punished in this country except according to the law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time." In that case, at the time of the commission of the murder for which Kring was indicted, the supreme court of Missouri had declared the law to be that when a conviction was had of murder in the second degree on an indictment charging murder in the first degree, if the conviction was set aside the defendant could not again be tried for murder in the first degree. After the commission of the crime the constitution of the state was so amended as to abrogate this rule and allow a defendant to be again put upon his trial for the highest crime charged in the indictment. After the change in the constitution, Kring, having been put on his trial for murder, made an agreement with the prosecuting attorney by which he was to plead guilty of murder in the second degree and receive a sentence of ten years' imprisonment in the penitentiary of the state. He entered his plea of guilty of murder in the second degree, but the court refused to be bound by the agreement of the prosecuting attorney, and sentenced Kring to the penitentiary for a term of twenty-five years. The case was taken to the supreme court of the state, and the sentence was set aside and a new trial granted. When again brought to trial he insisted on his agreement with the prosecutor, but the court still refused to be bound by it. He refused to withdraw his plea of guilty, but the court set it aside and entered a plea of not guilty. A trial was had and he was found guilty of murder in the first degree, and sentenced to be hung. He appealed to the supreme court of the state and the judgment of the lower court was affirmed, when he appealed to the supreme court of the United States where the judgment was set aside, that court holding that as at the time of the commission of the offense a judgment of guilty of murder in the second degree was a final acquittal of the crime of murder in the first degree, so it must continue to be so far as that crime was concerned. In the opinion of the court Miller, J., says: "We are of opinion that any law passed after the commission of an offense which, in the language of Washington in United...