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The sentence of death was pronounced March 31, 1903. Prior to that date, namely, on March 9, 1903, the legislature -without changing the law prescribing death or imprisonment for life as the punishment for the crime of murder in the first degree-passed an act providing that all executions should take place at the penitentiary, and amending certain sections of the Revised Codes of 1899. By that act it was provided: "§ 1. 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, the deputy warden shall be the executioner; and when any person shall be sentenced, by any court of the State having competent jurisdiction, to be hanged by the neck until dead, such punishment shall only be inflicted within the walls of the North Dakota penitentiary at Bismarck, North Dakota, within an enclosure to be prepared for that purpose under the direction of the warden of the penitentiary and the board of trustees thereof, which enclosure shall be higher than the gallows, and so constructed as to exclude public view."
"§3. When a person is sentenced to death, all writs for the execution of the death penalty shall be directed to the sheriff by the court issuing the same, and the sheriff of the county wherein the prisoner has been convicted and sentenced, shall, within the next ten days thereafter, in as private and secure a manner as possible to be done, convey the prisoner to the North Dakota penitentiary, where the said prisoner shall be received by the warden, superintendent or keeper thereof, and securely kept in close confinement until the day designated for the execution.
"§ 14. That section 8305 of the Revised Codes of 1899, relating to judgment of death, warrant to execute, be amended so as to read as follows: § 8305. When the 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 VOL. CXCVI-21
Argument for Plaintiff in Error.
196 U. S
a day upon which the judgment is to be executed, which must not be less than six months after the day in which the judgment is entered, and not longer than nine months thereafter."
"§ 16. All acts and parts of acts in conflict with the provision of this act are hereby repealed." Laws of North Dakota, 1903, c. 99, p. 119.
By the sentence it was ordered that the accused be conveyed to the state penitentiary, "there to be kept in close confinement until October the ninth 1903," and, within an inclosure in that building to be erected for the purpose, be hung by the warden of the penitentiary, or in case of his inability to act or his absence therefrom, by the deputy warden, before the hour of sunrise on the day fixed for the execution.
Mr. B. F. Spalding, with whom Mr. Seth Newman was on the brief, for plaintiff in error:
Section 10, Art. I, U. S. Const., provides "No State shall pass any
ex post facto law,
The punishment for murder in the first degree, where the death penalty is determined upon by the jury, under the law in force when this offense was committed, and the punishment fixed by the statute of March 9, 1903, was altered. Three months are added to the term of imprisonment before the execution. Under the former law the imprisonment before the execution, in case there was no jail in the county, in which the conviction was had, or where the jail in such county was deemed insecure, unfit or unsafe, was in another convenient county in the State. Under the latter law such imprisonment is in the penitentiary of the State, and in close confinement. Under the former law the defendant was to be executed in the county in which he was convicted, by the sheriff of such county, or his deputy. Under the latter law, the defendant is to be executed at the penitentiary of the State by the warden or his deputy. Plaintiff in error was sentenced under the statute of 1903, which is ex post facto and void.
196 U. S.
Argument for Defendant in Error.
Section 8305, Rev. Codes N. Dak., 1899, provides that the day appointed on which the judgment of death shall be executed ".. must not be less than three months after the day in which the judgment is entered, and not longer than six months thereafter," as amended by the statute of 1903, it provides that the day appointed on which the judgment of death shall be executed "must not be less than six months after the day in which the judgment is entered, and not longer than nine months thereafter."
If the imprisonment under the latter statute was to be in the county jail, as under the former, the statute would be ex post facto, because the punishment is increased by the three months' added imprisonment. Ex parte Mealey, 134 U. S. 160; People v. McNulty, 28 Pac. Rep. (Cal.) 816.
Section 3 of the act of 1903 provides that persons sentenced to death shall, within ten days thereafter, be conveyed to the North Dakota penitentiary, "and securely kept in close confinement until the day designated for the execution.
Imprisonment in the penitentiary as compared with imprisonment in the county jail is an increased and greater punishment. Case supra.
Mr. Emerson H. Smith, with whom Mr. W. H. Barnett was on the brief, for defendant in error:
The statute of 1903 is not void as ex post facto; it is an additional bulwark in favor of personal security. Calder v. Bull, 3 Dall. 386. For definitions of ex post facto laws in which increase of punishment is an element, see United States v. Hall, 26 Fed. Cas. 84; S. C., 6 Cranch, 171; King v. Missouri, 107 U. S. 221; Hopt v. Utah, 110 U. S. 574; In re Medley, 134 U. S. 160; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; State v. Hayes, 140 N. Y. 484. The act is in mitigation of the death penalty any change in which, short of death itself, is considered a mitigation, and postponement of the time of its infliction is also a mitigation. Commonwealth v. Gardner, 11 Gray, 438; Commonwealth v. Wyman, 12 Cush. 239;
Cooley on Const. Lim. § 272; In re Tyson, 13 Colorado, 487. If any shortening of life is to the convict's disadvantage any extension of life must be considered to his advantage. Territory v. Miller, 4 Dakota, 173, 181; State v. Rooney, 95 N. W. Rep. (N. Dak.) 517.
The fact that the convict is kept in the penitentiary in close confinement instead of in the county jail does not increase the severity of the punishment. The word "close" is not necessarily synonymous with "solitary." If the statute does not require solitary imprisonment there is no presumption that the officers of the penitentiary will make the confinement solitary. Holden v. State, 137 U. S. 483.
The fact that the execution is to be at the penitentiary instead of in the county in which the conviction was had does not make the statute ex post facto. In re Tyson, 30 Colorado, 487.
Whether the change in this law works to the advantage or disadvantage of the convict, i. e., which is the severer punishment, imprisonment for three months longer before hanging, under the new law, or death by hanging three months earlier, under the old law, is a question of law for the court to decide. People v. Hayes, 140 N. Y. 488, and other cases cited in 95 N. W. Rep. 518. Hartung v. People, 22 N. Y. 695, distinguished.
MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.
It appears from the statement of the case that the statute in force when the sentence of death was pronounced differed from those in force when the crime was committed and when the verdict was rendered, in these particulars:
1. By the later law, close confinement in the penitentiary for not less than six months and not more than nine months, after judgment and before execution, was substituted for confinement in the county jail for not less than three months nor more than six months after judgment and before execution.
2. By the later law, hanging, within an inclosure at the penitentiary by the warden or his deputy, was substituted for hanging by the sheriff within the yard of the jail of the county in which the conviction occurred.
We are of opinion that in the particulars just mentioned the statute of 1903 is not repugnant to the constitutional provision declaring that no State shall pass an ex post facto law. It did not create a new offense nor aggravate or increase the enormity of the crime for the commission of which the accused was convicted, nor require the infliction upon the accused of any greater or more severe punishment than was prescribed by law at the time of the commission of the offense. The changes, looked at in the light of reason and common sense and applied to the present case, are to be taken as favorable rather than as unfavorable to him. It may be sometimes difficult to say whether particular changes in the law are or are not in mitigation of the punishment for crimes previously committed. But it must be taken that there is such mitigation when by the later law there is an enlargement of the period of confinement prior to the actual execution of the criminal by hanging. The giving, by the later statute, of three months' additional time to live, after the rendition of judgment, was clearly to his advantage, for the court must assume that every rational person desires to live as long as he may. If the shortening of the time of confinement, whether in the county jail or in the penitentiary before execution, would have increased, as undoubtedly it would have increased, the punishment to the disadvantage of a criminal sentenced to be hung, the enlargement of such time must be deemed a change for his benefit. So that a statute which mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as,ex post facto with reference to that crime. Calder v. Ball, 3 Dall. 386, 391, Chase, J.; Story's Const. § 1345; Cooley's Const. Lim. *267; Commonwealth v. Gardner, 11 Gray, 438, 443; 1 Bishop's Crim. Law, § 280. Besides, the extension of the time to live, given by the later law, increased the opportunity of the ac