State v. Malloy

The opinion of the Court was delivered by Mr. Chibe Justice Gary.

The defendant was indicted and tried in July, 1912, for the murder of Prentiss Moore, on the 24th of November, 1910, and the jury rendered a verdict of guilty; whereupon the Court sentenced him to be electrocuted on the 9th of August, 1912, in the manner provided by the act, approved the 17th of February, 1912, which will be incorporated in the report of the case, together with section 946 of the Criminal Code of 1912, which prescribes the manner in which a person shall be hanged.

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The defendant appealed upon exceptions, which will be reported. The first question that will be considered is, whether the said act which changed the punishment for murder, from death by hanging to death by electrocution, was .unconstitutional, on the ground that it was an ex post facto law, as to' him.

Section 109, Criminal Code of 1902, is as follows: “Whoever is guilty of murder, shall suffer the punishment of death:

Provided, however, That in each case, where the prisoner is found guilty of murder, the jury may find a special verdict, recommending- him or her, to the mercy of the Court, whereupon the punishment shall be reduced to imprisonment in the penitentiary, with hard labor, during the whole lifetime of the prisoner.” .

Prior to the act of 1912, the mode of execution, when the prisoner was sentenced for murder, was by hanging.

*446 In Cooley’s Constitutional Limitations, pages 319-320, the author quotes with approval, the following language of Chase, J., in the leading case of Calder v. Bull, 3 Dall. 386 , as to ex post facto laws: “I will state what laws-1 consider ex post facto, within the words and the intent of the prohibition : 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates' a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required, at the time of the commission of the offense, in order to- convict the offender. All these and similar laws are manifestly unjust and oppressive. * * * But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction.” The last sentence is quoted with approval, in State v. Richardson, 47 S. C. 166, 25 S. E. 220 .

In the case of King v. State, 107 U. S. 221 , it was held, that any law is an ex post facto law, within the meaning of the Constitution, passed after the commission of a, crime charged against a defendant, which in relation to that offense, alters the situation of the party to his disadvantage; and no> one can be criminally punished, except in accordance with the law of force, when the offense was committed.

In that case the Court quoted with approval, the following language from the case of Hartung v. People, 22 N. Y. 95 : “It is highly probable, that it was the intention of the legislature, to extend favor rather than increased severity, towards the convict and others in her situation; and it is quite likely, that had they been consulted, they would have preferred the application of this law to their cases, rather *447 than that, which existed when they committed the offenses, of which they are convicted. But the case can not be determined on such considerations. No one can be criminally punished in this country, except according to a lazv prescribed for his government, before the supposed offense was committed, and which existed as a law, at that time.

It. would be useless to speculate upon the question, whether this would be so, upon the reason of the thing; and according to the spirit of our legal institutions, because the rule exists in the form of an express, written precept, the binding force of which, no' one disputes. No State shall pass, an ex post facto law, in the mandate of the Constitution of the United States.”

The Court also- quoted with approval the following language of Mr. Justice Washington, in United States v. Hall, 2 Wash. C. C. 366 : “An ex post facto law is one which in its operation, makes that criminal, which was not so, at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party, to his disad vantage.”

In Murphy v. The Commonwealth, 43 L. R. A. (Mass.) 154, it is said: “The objection to ex post facto legislation, consists in the uncertainty, which would be introduced thereby, into legislation of a criminal or penal character, and the injustice of punishing an act, which was not punishable when done, or, of punishing it in a different manner than that, in which it was punishable when done.

“But not all retroactive legislation is unconstitutional, as being ex post facto.

The question in each case is-, whether it will increase the penalty or operate to deprive a party of substantial rights or privileges, to which he was entitled, when the offense was committed; or, in short, in relation to the offense and its consequences, will alter the situation, of a party, to his disadvantage.” See, also, notes to1 the case *448 of Rooney v. North Dakota, 196 U. S. 319 , reported in Am. & Eng. Ann. Cases, 76.

A statute which merely regulates the manner, in which the execution shall be conducted, by prescribing the time and manner of the execution, and the number and character of the witnesses, is not ex post facto, though it applies to offenses committed before its enactment.

Holden v. Minnesota, 137 U. S. 491 .

“The objection that the later law required the execution of the sentence of death, to take place within- the limits of the penitentiary, rather than in the county jail, as provided in the previous statute, is without merit. However, material the place of confinement may be, in case of some crimes not involving life, the place of execution, when the punishment is death within the limits of the State, is of no' practical consequence to' the criminal. On such a motion he is not entitled to be heard.”

Rooney v. North Dakota, 196 U. S. 319 .

The foregoing authorities sustain the proposition, that the punishment prescribed by law for- an offense, at the time it was committed, can not be changed by subsequent legislation, unless the change is advantageous to' the prisoner.

The appellant’s attorneys argued, that the act of 1912 was unconstitutional, by reason of the fact, that the place of execution, and the number of witnesses permitted or required by the act of 1912, were changed to the disadvantage of the defendant. The foregoing authorities, also, show, that these objections are untenable. In the language of Mr. Cooley in his excellent work entitled 'Constitutional Limitations 322: “We have no doubt, the privileges the respondent claims, were designed and created solely, as incidents of the severe punishment, to which his offense formerly subjected him, and not as incidents- of the o-ff.ense.” In this respect the statute is analogous to those, which relate to penal administration or prison discipline, and are not unconstitutional, even though the effect may be to enhance *449 the severity of the confinement.

Murphy v. Commonwealth, 172 Mass. 264 .

We now come to the pivotal question, whether the act of 1912 changing- the punishment for murder from death by hanging to death by electrocution, shows that its tendency is to ameliorate the punishment by hanging.

In the case of In re Kemmler, 136 U. S. 436 , the Court had under consideration the question, whether the New York statute providing- that “punishment of death, must in every case, 'be inflicted by causing to pass through the body of the convict, a current of electricity, of sufficient intensity to cause death,” was obnoxious to' the provision of the Constitution, prohibiting the infliction of cruel and unusual punishment.

The first step which led to- the enactment of the law in that State, was the message of the Governor, in which he said: “The present mode of executing criminals by hanging, has come down to us from the dark ages, and it may well be questioned, whether the science of the present day, can not provide a means, for taking the life of such as are condemned to die, in a less barbarous manner. I commend this suggestion to1 the consideration of the legislature.” The legislature accordingly, appointed a commission to investigate and report “the most humane and practical method known to modern science, of carrying into effect the sentence of death in capital cases.” This commission reported in favor of execution by electricity. They also reported a proposed bill, which was enacted. Mr. Chief Justice Fuller, in delivering the opinion of the Court, said: “Punishments are cruel, when they involve torture, or a lingering death; but the punishment of death is not cruel, within the meaning of that word, as used in the Constitution. It implies there something inhuman and barbarous' — something more than the mere extinguishment of life. The Courts of New York held, that the mode adopted in this instance, might be said to be unusual, because it was new, but that it could not *450 be assumed to- be cruel, in the light of that common knowledge, which has stamped certain punishments as- such; that it was for the legislature to- say, in what manner sentence of. death should be executed; that this act was passed, in the effort to devise a more humane method of reaching the result; that the Courts were bound to- presume, that the legislature was possessed of the facts, upon which it took action; and that by evidence aliunde the statute, that presumption could not be overthrown. They went further, and expressed the opinion, that, upon the evidence the legislature had attained by the act, the object had in view, in its passage. * * * Treating it as involving an adjudication, that the statute was not repugnant to the Federal Constitution, that conclusion was so- plainly right, that we should not be justified in allowing the writ, upon the- ground that error might have supervened therein. * * * The enactment of this statute was, in itself, within the legitimate sphere of the legislative power of the State, and in the observance of those general rules, prescribed by our systems of jurisprudence; and the legislature of the State of New York, determined that it did not inflict cruel and unusual punishment, and its Courts have sustained that determination. We can not perceive that the State has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process o-f law.

“In order to reverse the judgment of the highest Court o-f the State of New York, we should be compelled to hold, that it had committed an error, so- gross, as to amount, in law, to a denial by the State, of due process of law, to- one accused of crime, or of some right secured to- him, by the Constitution of the United States.

“We have no- hesitation in saying, that this we can not do, upon the record before us.” The writ o-f error was accordingly denied.

It is true the provision of the United States Constitution now under consideration, was not before the Court in that *451 case, but the decision clearly shows, that the Court regarded electrocution, as a more humane method of punishment, than that by banging. It would have been surprising if the Court had reached any other conclusion, after .considering the manner in which an execution by hanging is conducted. The rope around the prisoner’s neck must be of the proper length, and so adjusted that when he drops from the scaffold, his neck will be broken, thus destroying the structural formation of the body. But suppose the rope is not of the proper length, or the noose is not properly adjusted, then there are instances on record, where the head was completely severed from the body, when the convict dropped from the scaffold. There are also1 numerous instances, where the neck was not broken, and the convict died of strangulation, after several minutes of consciousness. We merely mention the agony, which must have been suffered, during strangulation as indicated by the bulging eyes, and draw the curtain over such a picture. Suffice it to> say, that this Court is satisfied, that electrocution is a more humane method of execution than by hanging.

The exception raising this question, is, therefore, overruled.

The ruling of the Court upon the former appeal in this case, shows that the first, second and third exceptions can not be sustained.

The fourth exception has already been considered.

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There are two reasons, why the fifth exception can not be sustained. In the first place, the grounds of objection were not stated, and, in the second place, it has not ‘been made to appear, that the rights of the defendant were thereby prejudiced.

4

The sixth exception is overruled, for the reason that his Honor, the presiding Judge, simply meant to tell the jury, that if they believed the testimony of an expert, they were not to disregard it, merely because the witness was testifying as an expert *452 5

The seventh exception can not be sustained, for the reason that the- remark of the presiding' Judge was general, and was to- be understood, as if it had been preceded by the- word “if.”

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The eighth exception is overruled, for the reason that the defendant failed to- present a request, to charge the proposition, for which he now contends.

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The ninth and tenth exceptions can. not be sustained, for the reason that the record fails to- show an abuse of discretion, on the part o-f the presiding Judge, in ruling upon the competency of the jurors therein mentioned.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Circuit Court, for the purpose o-f having another day assigned, for carrying into' execution the sentence of the Court.