Nulty v. People of State of California
| Decision Date | 15 May 1893 |
| Docket Number | No. 1,253,1,253 |
| Citation | 13 S.Ct. 959,37 L.Ed. 882,149 U.S. 645 |
| Parties | McNULTY v. PEOPLE OF STATE OF CALIFORNIA |
| Court | U.S. Supreme Court |
W. H. H. Hart, Atty. Gen. Cal., for the motion.
Carroll Cook, opposed.
Plaintiff in error was tried for the murder of one Collins on March 25, 1888, convicted, and sentenced to be hanged. From the judgment of conviction he prosecuted an appeal to the supreme court of the state of California, which on May 1, 1891, affirmed the judgment of the court below. On May 27th the supreme court, of its own motion, set aside the judgment of affirmance solely on the ground, as shown by the record, that the cause might 'be argued upon the question of effect and operation of the recent amendment to the Penal Code respecting the execution of a sentence of death.' 26 Pac. Rep. 597. The cause having been reargued, the judgment below was again affirmed on December 12, 1891. 28 Pac. Rep. 816. On December 31st a petition for a rehearing was filed, and on January 11, 1892, a rehearing was granted, and thereafter the cause was again argued. On February 19, 1892, the judgment appealed from was again affirmed, (29 Pac. Rep. 61,) and plaintiff in error applied to the supreme court of California to allow a writ of error from this court, which application was denied. Subsequently a writ of error was allowed by one of the justices of this court, and a motion is now made to dismiss that writ or affirm the judgment.
At the time of the commission of the alleged crime, the conviction, and the judgment, the laws of California prescribed the penalty of death for such crime, and that execution should be had not less than 30 nor more than 60 days after judgment, by the sheriff, within the walls or yard of a jail, or some convenient private place in the county. Pending the appeal to the supreme court a statute was passed, amending the Penal Code so as to provide that the judgment should be executed in not less than 60 nor more than 90 days from the time of judgment, by the warden of one of the state prisons, within the walls thereof, and that the defendant should be delivered to such warden within 10 days from the judgment. St. Cal. 1891, p. 272.
As is stated in the majority opinion of the supreme court of the state, (93 Cal. 427, 26 Pac. Rep. 597, and 29 Pac. Rep. 61,) the case, when first heard in that court, was determined without reference to the amendment of the law concerning the execution of the death penalty.
Upon a suggestion of a difficulty arising in view of the amendments, which had been enacted after McNulty was convicted and sentenced, a reargument was ordered, and a majority of the court reached the conclusion that the amendments were, under the rule laid down in Medley's Case, 134 U. S. 160, 10 Sup. Ct. Rep. 384, unconstitutional in toto, and that, therefore, the former law was not thereby repealed. On that argument it was assumed, and the opinion of the court proceeded upon the assumption, that the amendments stood entirely without a saving clause, either in the amendments themselves, or in the general statutory law. Subsequently the attention of the court was called to section 329 of the Political Code as constituting a saving clause fully covering the amendments, and the court held that such was the effect of that section. The section read as follows: 'The repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment is expressly declared in the repealing act.'
It was therefore concluded that McNulty was to be punished under the law as...
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