Territory v. Miller

• Decision Date: 28 February 1886
• Citation: 4 Dak. 173,29 N.W. 7
• Parties: Territory v. Miller.
• Court: South Dakota Supreme Court

29 N.W. 7

4 Dak. 173

Territory

v.Miller.

Supreme Court of the Territory of Dakota.

February Term, 1886.

Error to district court, Grand Forks county, Third judicial district.C. B. Pratt, for plaintiff in error. Geo. Rice, Atty. Gen., and W. A. Selby, Dist. Atty., for the Territory.

CHURCH, J.

On the sixth day of August, 1885, the grand jury of Grand Forks county returned into the district court an indictment charging the plaintiff in error, George Miller, with the crime of murder, committed upon one Abbie Snell, January 24, 1885. Upon this indictment Miller was duly arraigned, and certain preliminary proceedings were had, in the course of which it became apparent that his purpose was to plead guilty. The court thereupon carefully warned and admonished him of the solemn consequences of such a plea, and that it would be a plea of guilty of murder, and would be so entered, and not, as insisted by his counsel, a plea of some lesser crime; and further informed him that if he pleaded not guilty he could have the facts passed upon by a jury, who might find him guilty only of the lesser offense, or not guilty of any offense. The defendant's counsel excepted to these admonitions, and, upon the court asking defendant whether he pleaded guilty or not guilty to the charge of murder as charged in the indictment, insisted that the court should ask the defendant whether he pleaded guilty or not guilty. The court, however, renewed the interrogatory: “Do you plead guilty or not guilty to the charge of murder as charged in the indictment?” to which defendant replied, “Guilty.” The court thereupon directed that the plea of guilty be entered to the charge of murder as set out in the indictment.

Upon the suggestion of the district attorney, and against the objection of defendant's counsel, the court subsequently, in the presence of the defendant and his counsel, and before pronouncing judgment, examined several witnesses, for the purpose of informing itself as to the nature and circumstances of the offense; from all which it appeared, as indeed was freely admitted, both then and upon the argument in this court, that the crime was one of very great atrocity; the defendant having confessed, and being abundantly corroborated by other evidence, that during the temporary absence of his employer he had murdered his wife and infant son with an axe after they had retired to bed, and that the motive of the crime was the plunder of a cash-box kept in a trunk in Mrs. Snell's bed-room.

A motion was made in arrest of judgment, but inasmuch as none of the reasons assigned in support thereof were based upon any defects in the indictment, it is unnecessary to consider them. The court denied the motion, and thereupon passed judgment and sentence of death upon the defendant.

But one point is urged upon us as a ground for the reversal of the judgment. It grows out of the enactment by the legislature of certain amendments to the Penal Code. Section 249 of that Code declares that “every person convicted of murder shall suffer death for the same.” By section 1 of the act of the legislative assembly approved February 21, 1883, (Laws 1883, c. 9, p. 16,) this section was amended to read as follows: “Every person convicted of murder shall suffer death, or imprisonment at hard labor in the territorial penitentiary for life, at the discretion of the jury.” Section 2 of the same act provides that, “upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death, or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith.” The act also contains the usual general repealing clause. By act approved March 13, 1885, (Laws 1885, c. 29, p. 45,) section 2 of the act of 1883 was amended by adding thereto, at the close, the words, “But upon a plea of guilty, the court shall determine the same.”

The proposition of the defendant's counsel upon which he bases his demand for a reversal of this judgment is as follows: That section 249 of the Penal Code was repealed by the act of 1883; that from that date until the amendment of March 13, 1885, there was no law authorizing judgment upon a plea of guilty; that the offense charged having been committed January 24, 1885, the act of March 13, 1885, was, as to him, ex post facto, and therefore the defendant, by pleading guilty, was entitled to absolute immunity from punishment. The question is stated in the brief of defendant's counsel as follows: Is the law approved March 13, 1885, and under which judgment herein was rendered, authorizing the court to determine the grade of the offense and degree of punishment, upon a plea of guilty by persons charged with murder, ex post facto, as to this defendant? It is insisted that this question must be answered in the affirmative.

Upon the argument the proposition was broadly stated, somewhat as follows: “The defendant when he committed this act might, in contemplation of law, have said: ‘I will murder this woman, and may do so with perfect safety, because, if I am indicted for it, I will plead guilty, and in that case no penalty can be inflicted.”’ It will be observed that this involves absolute immunity from punishment for all murders committed between February 21, 1883, and March 13, 1885, since it can hardly be supposed that any one charged with that crime would plead not guilty, on the chance of securing a result which might be certainly secured by pleading guilty. The proposition is certainly a startling one,-nay, more, it is shocking; and, if true, would be a bitter reproach, indeed, to the legislature which enacted such a law; because, however dire the result, it must be presumed that the legislature intended to do just what they have by legal enactment accomplished, and hence, in this case, that they intended that murder, however atrocious, should go unpunished.

If such was their intention, they certainly might have effected it by much simpler means. A bare repeal of section 249 of the Penal Code would have been entirely sufficient. But, on the other hand, we are not to presume any such intention. We are not to conclude that the legislature designed to withdraw from society legal protection against this most awful crime, unless for the amplest and most convincing reasons, unless, indeed, we are driven to such a conclusion by considerations which are irresistible.

We are quite mindful of all that has been said and written by humane and enlightened jurists concerning the sacredness with which the law regards the rights and privileges of those charged with crime, especially when such charge involves the life of the accused. We are not ignorant that very many criminals have escaped punishment upon grounds which to the non-professional mind have seemed mere technicalities; nor do we desire to question the wisdom of the rule which declares that society must ascertain and punish offenders against its laws only under and through those regular forms which constitute what is known as “due process of law.” But even these considerations, just and salutary though they are, must have a limit, and it becomes those who are charged with the duty of interpreting and administering the laws to be careful lest, in their anxiety to afford to even the most abandoned criminal the due protection of the law, they do not overstep the bounds and deprive society of that protection to which it also is justly entitled, and its right to which is surely just as sacred as that of any individual member. Such would seem to have been the views of our own law-makers. The legislature has, in express terms, abrogated one rule of statutory construction which has doubtless often occasioned a failure of justice in particular cases. Section 10 of the Penal Code declares that “the rule of the common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects, and to promote justice.”

Our plain duty, then, is to endeavor to ascertain the true intent and meaning of the legislature in enacting the amendatory statutes referred to. Under a familiar rule governing the interpretation of statutes, we first inquire how the law stood prior to the statute of 1883. Criminal homicide might be either murder or manslaughter. Murder is not distinguished into degrees; there are two degrees in manslaughter. No change has been made in the law in this respect. But one punishment was affixed to the crime of murder. The penalty, in all cases, was death. Such being the law, the statute of 1883 was enacted, by the first section of which, it will be observed, section 249 of the Penal Code is amended, while by the second section the verdict and judgment-that is to say, the procedure-are provided for. The amendment to section 249 consists, substantially, in the addition of the words, “or imprisonment for life, at the discretion of the jury.”

Can it be doubted that the primary intent of the legislature was, by this amendment, to mitigate the severity of the law by a recognition of the fact that some murders are of a more heinous and atrocious character than others, even though all may be murders? Other states and territories have effected the same object, perhaps more wisely, by distinguishing murder into degrees, and affixing the extreme penalty to the first degree only, and in such cases the statutes define what acts...