State v. Rooney

• Decision Date: 24 June 1903
• Citation: 95 N.W. 513,12 N.D. 144
• Parties: STATE v. ROONEY
• Court: North Dakota Supreme Court

95 N.W. 513

12 N.D. 144

STATE v. ROONEY

Supreme Court of North Dakota

June 24, 1903

Appeal from District Court Cass County; Pollock, J.

John Rooney was convicted of murder in the first degree, and his punishment fixed at death. He appeals from the judgment.

Affirmed.

W. S Stambaugh, for appellant.

The court erred in sentencing appellant on March 31, 1903, as the law in force, when the crime was committed, was repealed by a statute taking effect March 9, 1903. Section 5142, Rev. Codes 1899, is a general saving clause, to be read into statutes repealing punishments for crime, unless a different purpose is plainly expressed by the legislature. The statute is a copy of section 13, U. S. statutes at large. See 1 Gould and Tucker, Notes on U. S. Statutes 13.

Section 8305, Rev. Codes 1899, is amended and re-enacted by the law of 1903, and all acts in conflict are repealed. Laws of 1903 chapter 99. The defendant cannot be punished under the repealed law. Hartung v. People, 22 N.Y. 95; Kring v. State of Mo., 107 U.S. 221, 27 L.Ed. 506; Ex parte Medley, 134 U.S. 106, 33 L.Ed. 835; People v McNulty, 28 P. 816.

The law in force at the time of the offense, of which defendant was convicted, provided as punishment, confinement in jail not less than three nor more than six months and hanging by the sheriff of the county. The law of 1903 provides close confinement in the state penitentiary not less than six nor more than nine months, and execution by its warden.

The law of 1903 is ex post facto and void because it "changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed." Imprisonment in the penitentiary is greater punishment than imprisonment in the county jail. Ex parte Medley, supra; People v. McNulty supra.

The law of 1903 not only imposes a greater punishment in kind, but adds three months to the term of imprisonment. While the maximum term under the old law, is the minimum under the new, it is not what will, but what may, be inflicted, that determines the increase of punishment. Wilson v. O. & M. R. R. Co., 16 Am. Rep. 565.

It cannot be that imprisonment of one under a death sentence is a mere incident and detail, and no part of the sentence or punishment. Ex parte Medley, supra; People v. McNulty, supra. Any change which does not mitigate the punishment, renders the statute ex post facto and void. State v. McDonald, 20 Minn. 126; People v. Dane, 45 N.W. 655.

Emerson H. Smith, State's Attorney, J. A. McEldowney and W. H. Barnett, for the state.

Section 8305 is not repealed by act of 1903, so far as it relates to the penalty, the only change being as to the time of the execution. The court may simply postpone the execution ninety days. The penalty is the same in both. Postponement of the execution is in no-wise additional punishment. It gives defendant further time for investigation of the facts of his case, and often results beneficially to him. Even when hope of reprieve, commutation of sentence, or a new trial is gone, it allows him time for preparation for enternity. Restraint at the penitentiary adds no greater ignominy to the name of the defendant. He is already branded by the verdict as a felon, unfit to live. The statute adds nothing by the new law other than is found in the old.

An ex post facto law is one which inflicts a greater punishment than the law in existence at the time that the crime was committed affords. Calder v. Bull, 3 Dallas 386, 1 L.Ed. 648. Tested by this rule, can it be said that the law of 1903 is ex post facto, because it detains the defendant in the penitentiary waiting execution, and gives the trial court discretion to delay execution ninety days?

Under section 5142, Rev. Codes 1899, the repeal of an act defining crime and its punishment does not prevent the prosecution and conviction of a party for its violation. U. S. v. Barr, 4 Saw. 254; U. S. v. Mathews, 25 F. 74; U. S. v. Ulrici, 3 Dil. 532. Sutherland on Stat. Con. 225, 226.

If the court finds that section 5142 must be read into the law of 1903, then it is not necessary to consider the constitutionality of the law of 1903, whether it is ex post facto, increases or decreases punishment; but it has but to order the trial court to proceed according to the law as it exists In re Parks, 45 N.W. 824; People v. Bemis, 16 N.W. 794; ex-parte Gilmore, 12 P. 800; State v. Marple, 14 P. 521; Ratzky v. People, 29 N.Y. 127.

Errors and mistakes, unless prejudicial, not regarded. Section 8423 Rev. Codes 1899.

OPINION

COCHRANE, J.

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 Bismarck, there to be kept in close confinement until October 9, 1903, and then and there to be hanged by the neck until dead. This appeal is from the judgment.

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 there 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 1899, provided that, "when 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 the conviction and judgment, and appointing a day on which the judgment is to be executed, which must not be less than three months after the day in which the judgment is entered, and not longer than six months thereafter."

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...