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Opinion of the Court.

such cases, nor interfere with the power of the governor to issue a warrant of execution. The provisions of the previous law, as to the nature of the sentence, the particular mode of inflicting death, and the issuing by the governor of the warrant of execution before the convict was hung, were, therefore, not repealed, although some of them were reënacted or repeated in the statute of 1889, and other provisions relating merely to the time and mode of executing the warrant, but not affecting the substantial rights of the convict, were added. Indeed, as the act of 1889 does not itself prescribe the punishment of death for murder in the first degree, the authority to inflict that punishment, even for an offence committed after its passage, must be derived from the previous law. The only interpretation of that act that will give full effect to the intention of the legislature in respect to the prior unrepealed law relating to sentences of death for murder in the first degree committed before its passage, is to hold, as we do, that its fourth section, prescribing solitary confinement, is an independent provision, applicable only to future offences, not to those committed prior to its passage.

In this view, and as it does not appear that the appellant is kept in solitary confinement, there is no ground upon which it can be held that his mere imprisonment, in execution of the sentence of death, is in violation of the constitutional provision against ex post facto laws. That sentence, the subsequent imprisonment of the convict under it, without solitary confinement, and the warrant of execution, are in accordance with the law of the State as it was when the offence was committed, and do not infringe any right secured by the Constitution of the United States.

Much was said at the argument in reference to section 3 of chapter 4 of the General Statutes of 1886, declaring that “ whenever a law is repealed, which repealed a former law, the former law shall not thereby be revived, unless it is so specially provided, nor shall such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the law repealed.” This section was admitted to be a part of the law

Opinion of the Court.

of Minnesota at the time the appellant's offence was committed, and when the act of 1889 was passed. On behalf of the State it is contended that the former law for the punishment of murder in the first degree is to be read in connection with that section. We have not deemed it necessary to consider whether that section is applicable to capital cases, or to determine whether the punishment of death is, within its meaning, a “penalty.” Independently of that section, and for the reasons stated, we hold that the act of 1889, although applicable to offences committed after its passage, did not supersede the prior law prescribing, as the punishment for murder in the first degree committed prior to April 24, 1889, death by hanging, to be inflicted after the issue by the governor of a warrant of execution.

Among the assignments of error by the appellant is one to the effect that "the judgment of the State District Court that he be hanged at a time to be fixed by the governor of Minnesota was not a valid exercise of judicial authority or due process of law thus to deprive him of life at such time as the executive should arbitrarily appoint.” We do not understand the counsel of the appellant to press this point. But as this assignment of error has not been formally withdrawn, and as human life is involved in our decision, it is proper to say that, under the law of Minnesota, at the time appellant committed the crime of which he was convicted, as well as when he was indicted and tried, the day on which the punishment of death should be inflicted depended upon the warrant of the governor. It is competent for the State to establish such regulations, and they are entirely consistent with due process of law. The court sentenced the convict to the punishment prescribed for the crime of murder in the first degree, leaving the precise day for inflicting the punishment to be determined by the governor. The order designating the day of execution is, strictly speaking, no part of the judgment, unless made so by statute. And the power conferred upon the governor to fix the time of infliction is no more arbitrary in its nature than the same power would be if conferred upon the court. Whether conferred upon the governor or the court, it is arbitrary in no

Statement of the Case.

other sense than every power is arbitrary that depends upon the discretion of the tribunal or the person authorized to exercise it. It may be, also, observed that at common law the sentence of death was generally silent as to the precise day of execution. Atkinson v. The King, 3 Bro. P. C. 2d ed. 517, 529; Rex v. Rogers, 3 Burrow, 1809, 1812; Rex v. Doyle, 1 Leach, 4th ed. 67; Cuthcart v. Commonwealth, 73 Penn. St. 108, 115; Costley v. Commonwealth, Commonwealth v. Costley, 118 Mass. 1, 35. Of course if the statute so requires, the court must, in its sentence, fix the day of execution. Equally must it forbear to do that if the statute confers upon some executive officer the power to designate the time of infliction.

Judgment affirmed.

MR. JUSTICE BRADLEY and MR. JUSTICE BREWER concurred in the judgment.



No. 110. Argued December 10, 1890.

Decided December 22, 1890.

The original bill of exceptions in this case, signed by the trial judge, and

also certified by the clerk of the trial court, was transmitted to the Supreme Court of the Territory of Utah, and was filed, together with the record of the case, in that court. Held, that its identification and authentication were perfect and were sufficient to bring the questions

raised by the record within the jurisdiction of this court. The wife of a married man is not a competent witness in Utah against her

husband on trial under an indictment for polygamy.

On the 23d of November, 1886, the grand jury of the District Court for the First Judicial District of Utah Territory found an indictment for polygamy against the plaintiff in error, charging him with having married one Kate Smith, on the 14th day of August, 1884, when his lawful wife, Sarah Ann Williams, was still living and undivorced.

A motion was made to set aside and dismiss the indictment

Argument for Defendants in Error.

on the ground that it had not been found and presented in the manner prescribed by law, because it had been found without any other evidence than that of the legal wife. This motion was overruled.

The accused pleaded not guilty and was tried by a jury, on the 6th day of January, 1887. He was convicted, and, on the same day, sentenced to be imprisoned in the penitentiary of Utah for five years and to pay a fine of five hundred dollars.

An appeal was taken to the Supreme Court of Utah Territory where the judgment of the District Court was affirmed. The defendant sued out this writ of error.

The plaintiff in error made in this court several assignments of error. Only the following was considered in the opinion.

First: The District Court erred in permitting Mrs. Sarah Bassett, the former legal wife of the plaintiff in error, against his objection, to testify to a confidential communication made to her by him, while they were husband and wife, and not in the presence of any other person."

The Attorney General on the part of the government, contended that there was no competent bill of exceptions. The ground for this objection is stated in the opinion of the court.

Mr. Franklin S. Rich ards for plaintiff in error. Mr. Charles C. Richards was with him on the brief.

Mr. Attorney General for defendants in error.

If the bill of exceptions is to be regarded as in the record, it is necessary to consider the questions made in the brief for plaintiff in error.

It is insisted that there is no evidence in this case of the second marriage, except the confession of the defendant, and that such confession uncorroborated is insufficient. In the first place, this statement made by Bassett to his wife was not “a confession” within the meaning of the law. He stated that he had married a second wife, but he did not state or admit that he had committed a crime. This question seems


Argument for Defendants in Error.

to be covered by the decision in The State v. Crowder, 41 Kan. sas, 110, 111. But, as a matter of fact, this confession bas corroboration in the evidence. And it is not the rule that a prisoner will not be convicted upon a confession without corroborative evidence. In Hopt v. Utah, 110 U. S. 574, 584, this court gives its sanction to the statement that “a confession, if freely and voluntarily made, is evidence of the most satisfactory character. Such a confession, said Eyre, C. B., 1 Leach, 263, is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and, therefore, it is admitted as proof of the crime to which it refers.' Elementary writers of authority concur in saying that while from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution, a deliberate, voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession."

The decision in Bergen v. People, 17 Illinois, 436, S. C. 65 Am. Dec. 672, cited and relied on by plaintiff in error, states that the corroborative circumstances need not go to the proof of the corpus delicti; but may be sufficient if they are corroborative of any part of the testimony. It is also stated in the same case that the text-books generally say that a confession alone is sufficient.

The main question argued on the other side, is whether the plaintiff's first wife was a competent witness to the matters of which she testified. It is beyond question that, unless the common law rule is changed by the statute of Utah, this testimony was incompetent. The material matter to which she testified was a conversation between her husband and herself while the relation of husband and wife existed, in the absence of any third person except a little child, in which the husband admitted that he had married the second time; in other words, had committed the crime against which this prosecution is directed. It was claimed on behalf of the Government that section 1156 of the code of civil procedure of Utah embodies the law determinative of this question. That

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