Territory v. Ketchum.

• Decision Date: 25 February 1901
• Citation: 65 P. 169,10 N.M. 718
• Parties: TERRITORYv.KETCHUM.
• Court: New Mexico Supreme Court

10 N.M. 718

65 P. 169

TERRITORY

v.KETCHUM.

Supreme Court of the Territory of New Mexico.

Feb. 25, 1901.

Syllabus by the Court.

Section 1151 of the Compiled Laws of 1897, prescribing the death penalty for assault upon a train with intent to commit robbery or other felony, does not prescribe a cruel and unusual punishment, within the meaning of the eighth amendment to the constitution of the United States.

Appeal from district court, Union county; before Chief Justice William J. Mills.

Thomas Ketchum was convicted of train robbery, and appeals. Affirmed.

Section 1151 of the Compiled Laws of 1897, prescribing the death penalty for assault upon a train with intent to commit robbery or other felony, does not prescribe a cruel and unusual punishment within the meaning of the Eighth amendment to the Constitution of the United States.

William B. Bunker and John R. Guyer, for appellant.

Edward L. Bartlett, Sol. Gen., and Lewis C. Fort, for the Territory.

PARKER, J.

The appellant was convicted in Union county, in the Fourth judicial district, under section 1151 of the Compiled Laws of 1897, which is as follows: “If any person or persons shall willfully and maliciously make any assault upon any railroad train, railroad cars, or railroad locomotives within this territory, for the purpose and with the intent to commit murder, robbery, or any other felony upon or against any passenger on said train or cars, or upon or against any engineer, conductor, fireman, brakeman, or any officer or employé connected with said locomotive, train or cars, or upon or against any express messenger, or mail agent on said train, or in any of the cars thereof, on conviction thereof shall be deemed guilty of a felony and shall suffer the punishment of death.” Judgment was rendered upon the verdict, and the appellant sentenced to death by hanging, as provided by section 1067, Id. The case is here on appeal, and presents the single question whether the death penalty, as applied to this offense, is a cruel and unusual punishment, within the prohibition of the eighth amendment to the constitution of the United States. It may be assumed that the death penalty, in a proper case, is not cruel, within the prohibition of the constitution. In re Kemmler, 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519. And it is a matter of common knowledge that it is not unusual; it being employed in nearly all the states, as well as by the United States, as a punishment for crime. But it is contended by counsel for appellant that the death penalty is such an excessive punishment in degree for the offense of which the defendant stands convicted as to be within the prohibition of the constitution. Much difficulty has been expressed by both courts and text writers in attempting to define the scope of this constitutional provision. Some courts have thought that it was never intended as a limitation upon legislative discretion in determining the severity of punishment to be inflicted, but, rather, refers to the mode of infliction. Thus, in Aldridge v. Com., 2 Va. Cas. 447, 449, it is said: “That provision was never designed to control the legislative right to determine ad libitum upon the adequacy of punishment, but is merely applicable to the modes of punishment.” In Com. v. Hitchings, 5 Gray, 482, 486, it is said: “The question whether the punishment is too severe and disproportionate to the offense, is for the legislature to determine.” In Sturtevant v. Com., 158 Mass. 598, 33 N. E. 648, it is said: “This article is directed to courts, not to the legislature.” It may be, however, that the decisions in Massachusetts are based upon the peculiar language of their constitution, which is: “No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.” In State v. Williams, 77 Mo. 310, 312, it is said: “The interdict of the constitution against the infliction of cruel and unusual punishments would apply to such punishments as amount to torture, or such as would shock the mind of every man possessed of common feeling,-such, for instance, as drawing and quartering the culprit, burning him at the stake, cutting off his nose, ears, or limbs, starving him to death, or such as was inflicted by an act of parliament as late as 22 Hen. VIII., authorizing one Rouse to be thrown into boiling water and boiled to death for the offense of poisoning the family of the bishop of Rochester. *** If, under the statute in question [defining and providing punishment for the crime of obtaining money under false pretenses], a punishment by imprisonment for life of one who is convicted of the offense therein defined should be inflicted, it might well be said that such punishment would be excessive, or, rather, entirely disproportioned to the magnitude of the offense, yet, notwithstanding this, there is high authority for saying that ‘the question whether the punishment is too severe and disproportionate to the offense is for the legislature to determine.”’ In People v. Morris, 80 Mich. 634, 638, 45 N. W. 591, 592, 8 L. R. A. 685, 686, it is said: “The difficulty in determining what is meant by ‘cruel and unusual punishment,’ as used in our constitution, is apparent. Counsel for defendants claims that, as properly understood, it means, when used in this connection, punishment out of proportion to the offense. If by this is meant the degree of punishment, we do not think the contention correct. When, in England, concessions against cruel and unusual punishments were first wrested from the crown, slight offenses were visited with the most extreme punishment, and no protest was made against it.” In Garcia v. Territory, 1 N. M. 415, 418, this court said: “The word ‘cruel,’ as used in the amendatory article of the constitution, was, no doubt, intended to prohibit a resort to the process of torture, resorted to so many centuries as a means of extorting confessions from suspected criminals under the sanction of the civil law. It was never designed to abridge or limit the selection by the lawmaking power of such kind of punishment as was deemed most effective in the punishment and suppression of crime.” This provision of the constitution was before the supreme court of the United States in Wilkerson v. Utah, 99 U. S. 130, 25 L. Ed. 345. In that case the question was whether a judgment directing the infliction of the death penalty by shooting was cruel and unusual. The court said: “Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to (4 Bl. Comm. 377), where the prisoner was drawn or dragged to the place of execution, in treason; where he was emboweled alive, beheaded, and quartered, in high treason; cases of public dissection, in murder; and of burning alive, in treason committed by a female, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the constitution.” In re Kemmler, 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519, the question was whether the method adopted by the New York statute of inflicting the death penalty, which was by electrocution, was cruel and unusual. The court said: “This declaration of rights [act of parliament of 1688; 1 Wm. & Mary, c. 2] had reference to the acts of the executive and judicial departments of the government of England; but the language in question, as used in the constitution of the state of New York, was intended particularly to operate upon the legislature of the state, to whose control the punishment of crime was...