Simborski v. Wheeler
| Decision Date | 03 March 1936 |
| Citation | 121 Conn. 195,183 A. 688 |
| Court | Connecticut Supreme Court |
| Parties | SIMBORSKI v. WHEELER et al. |
Case Reserved from Superior Court, New Haven County; Alfred C Baldwin, Judge.
Action by John Simborski against Alfred N. Wheeler and others to have a judgment of murder in the first degree against plaintiff and the sentence founded upon it set aside as illegal and void, and for an injunction, brought to the Superior Court, which reserved the case.
Questions answered.
Michael J. Quinn and William J. McKenna, both of New Haven for plaintiff.
Samuel E. Hoyt, State's Atty., and Abraham S. Ullman, Asst State's Atty., both of New Haven, for defendants.
Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.
On April 25, 1935, the plaintiff was found guilty of murder in the first degree, the crime having been committed on March 5, 1935, and in pursuance of a proper warrant was delivered to the warden of the state prison, within which he is now being held. The judgment directed, in the usual form, that on August 22, 1935, before the hour of sunrise, within the prison walls and by the warden or deputy warden, Simborski should be hanged by the neck until he was dead. This judgment in its statement of the manner in which the execution was to be performed was in strict compliance with the terms of the statutes then in effect. General Statutes, §§ 6497, 6498. The plaintiff appealed from the judgment to this court and, pending the appeal, he was duly reprieved by the Governor until January 14, 1936. On January 7, 1936, this court found no error upon the appeal. State v. Simborski, 120 Conn. 624, 182 A. 221. Thereafter another reprieve was duly granted by the Governor until March 10, 1936, in order to enable the plaintiff to raise the issue presented in this case. That issue arises out of the fact that after the entry of the judgment directing his execution the Legislature of 1935 passed two acts, the effect of which was to change the method of execution of a death sentence. One of these, chapter 161 of the Public Acts of 1935, in its first section directed the warden to appoint a suitable person to perform the duty of executing sentences of the court requiring the infliction of the death penalty; the second section repealed so much of sections 6497 and 6498 of the General Statutes as was inconsistent with the terms of the act; and the third section provided that the act should take effect from its passage. It was signed by the Governor on May 21, 1935, and therefore took effect that day. Later in the session, chapter 266 of the Public Acts of 1935 was passed. The first section of this act (Gen. St. Supp. 1935, § 1726c) in terms amended a sentence in section 6497 of the General Statutes, making a complete substitution therefor; the second section (Gen. St. Supp. 1935, § 1727c) in terms amended section 6498 of the General Statutes, making a complete substitution for it; the third section repealed chapter 161 of the Public Acts of 1935; and the fourth section provided that the act should take effect upon its passage. The changes material to the case before us made in the law by these acts were to provide that the execution of the death sentence might take place on the day designated by the judge imposing sentence or within five days thereafter, instead of on the day designated; that the execution should be by electrocution, instead of by hanging; and that the penalty should be inflicted by some suitable person designated by the warden instead of by the warden or his deputy.
In 1860 the case of State v. Daley, 29 Conn. 272, came before this court. Daley had been convicted of the crime of manslaughter, but between the time he committed the offense and his trial the Legislature passed an act expressly repealing the statute in force when the crime was committed, which had fixed the punishment for manslaughter as a fine not exceeding $1,000 and imprisonment for not less than two or more than ten years, and changing the penalty to a fine not exceeding $1,000 and imprisonment for not exceeding ten years. We held that Daley could not legally be convicted under the statute that had been repealed, nor under the statute which was substituted for it, because that was by its terms prospective in its operation, and directed that the judgment against him should be arrested. Storrs, Chief Justice, writing the opinion, said (29 Conn. 272, 275, 276): " His escape from punishment might easily have been prevented if the legislature had, as they usually do, on the repeal of criminal laws, modified the repeal by a saving from its operation of offenses committed against the repealed law prior to such repeal." See, also, State v. Grady, 34 Conn. 118, 128. No doubt it was to avoid just such an oversight by the Legislature as suggested in that opinion that chapter 107 of the Public Acts of 1871 was enacted, which, without substantial change, now appears as section 6561 of the Revision of 1930. It provides as follows: " The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect." Ten years later, in 1881, the Legislature passed an act which provided that, in the construction of all statutes thereafter enacted, except where such construction would be repugnant to the express terms of the statute: " The repeal of an act shall not affect any punishment, penalty, or forfeiture incurred before the repeal takes effect, or any suit or prosecution, or proceeding pending at the time of the repeal for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed." Pub. Acts 1881, c. 1. Save for the exception, this statute now forms a part of section 6568 of the General Statutes.
The situation before us is clearly within the intent of these provisions. In effect they attach to every act repealing a statute within their purview a saving clause such as that suggested in State v. Daley, supra, under which the repealed statute still remains in full effect as regards any matter covered by it. Chittenden v Judson, 57 Conn. 333, 334, 17 A. 929; Hertz v. Woodman, 218 U.S. 205, 217, 30 S.Ct. 621, 54 L.Ed. 1001; Great Northern Ry. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567; De Four v. United States (C. C. A.) 260 F. 596, 599; State ex rel. Ackerly v. Shepherd, 202 Iowa, 437, 210 N.W. 476; and see the following cases in which a similar conclusion was reached as regard crimes punishable by death: People v. McNulty, 93 Cal. 427, ...
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State v. Santiago
...possibility of release or death depending on recommendation of jury, no violation of equal protection to do so); Simborski v. Wheeler, 121 Conn. 195, 198-201, 183 A. 688 (1936) (finding that legislature clearly intended for savings statute to apply to legislation altering mode of execution ......
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Valeriano v. Bronson, 13274
...saves something, i.e., the bar of the "year and a day" rule, that would otherwise have been lost. See generally Simborski v. Wheeler, 121 Conn. 195, 183 A. 688 (1936); Heath v. King, 665 S.W.2d 133, 136 (Tex.Civ.App.1984). "The usual function of a saving clause is to preserve something from......
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State v. Kalil
...were enacted in 1871 and 1881, respectively, to counter the effect of the common-law abatement doctrine. See Simborski v. Wheeler, 121 Conn. 195, 198–99, 183 A. 688 (1936) ; see also Public Acts 1871, c. 107 (now codified as amended at § 54–194 ); Public Acts 1881, c. 1 (now codified at § 1......
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State v. Peeler
...not constitute cruel and unusual punishment), cert. denied, 395 U.S. 927, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969) ; Simborski v. Wheeler, 121 Conn. 195, 197–98, 201, 183 A. 688 (1936) (challenge to form of execution was based on statutory rather than constitutional ground). Although the state ......