Opinion · Supreme Court of the United States
Rooney v. North Dakota
196 U.S. 319
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1905-01-23
- Topic
- general
How later courts describe this case
- "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"
Citator
UpLaw has not yet analyzed Rooney v. North Dakota. The absence of a flag is not a finding that it is good law.
- Cited by
- 88 opinions
ROONEYv. NORTH DAKOTA,196 U.S. 319(1905)
25 S.Ct. 264
ROONEYv. NORTH DAKOTA.
ERROR TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA.
No. 123.
Argued January 12, 1905.
Decided January 23, 1905.
THIS writ of error brings in question a final judgment of the
Supreme Court of the State of North Dakota, affirming the
Page 320
judgment of an inferior court of that State, by which, pursuant
to the verdict of a jury, the plaintiff in error, John Rooney,
was sentenced to death for the crime of murder in the first
degree.
The sole question upon which the plaintiff in error seeks the
judgment of this court, and the only one that will be noticed, is
whether the statute under which he was sentenced wasex post
factoand therefore unconstitutional in its application to his
case. His counsel agrees that the judgment must stand if the
statute be constitutional.
Before as well as after the passage of the statute under which
the sentence was pronounced the punishment prescribed by the
State for murder in the first degree was death or imprisonment in
the penitentiary for life. Rev. Codes, North Dakota, 1899, §
7068.
By the statutes in force at the time of the commission of the
offense, August 26, 1902, as well as when the verdict of guilty
was rendered, it was provided that when a judgment of death is
rendered the judge must deliver to the sheriff of the county a
warrant stating the conviction and judgment, and appointing a day
on which the judgment is to be executed, "which must not be less
than three months after the day in which judgment is entered, and
not longer than six months thereafter," § 8305; that when there
was no jail within the county, or whenever the officer having in
charge any person under judgment of death deemed the jail of the
county where the conviction was had insecure, unfit or unsafe for
any cause, he could confine the convicted person in the jail of
any other convenient county of the State, § 8320; that the
judgment of death should be executed within the walls or yard of
the jail of the county in which the conviction was had, or within
some convenient inclosure within such county, § 8321; and that
judgment of death must be executed by the sheriff of the county
where the conviction was had, or by his deputy, one of whom at
least must be present at the execution. Rev. Codes of North
Dakota, 1899, § 8322.
Page 321
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
Page 322
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.
Section 10, Art.I, U.S. Const., provides "No State . . . shall pass any . . .ex post factolaw, . . ."
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 isex post factoand void.Page 323
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 beex postfacto, because the punishment is increased by the three months' added imprisonment.Ex parte Mealey,134 U.S. 160;Peoplev.McNully, 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. Casesupra.Mr. Emerson H. Smith, with whomMr. W.H. Barnettwas on the brief, for defendant in error:
The statute of 1903 is not void asex post facto;it is an additional bulwark in favor of personal security.Calderv.Bull, 3 Dall. 386. For definitions ofex post factolaws in whichincreaseof punishment is an element, seeUnited Statesv.Hall, 26 Fed. Cas. 84;S.C., 6 Cranch, 171;Kingv.Missouri,107 U.S. 221;Hoptv.Utah,110 U.S. 574;In reMedley,134 U.S. 160;Cummingsv.Missouri, 4 Wall. 277;Exparte Garland, 4 Wall. 333;Statev.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.Commonwealthv.Gardner, 11 Gray, 438;Commonwealthv.Wyman, 12 Cush. 239;Page 324Cooley on Const. Lim. § 272;In re Tyson,13 Colo. 487. If any shortening of life is to the convict's disadvantage any extension of life must be considered to his advantage.Territoryv.Miller, 4 Dakota, 173, 181;Statev.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.Holdenv.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 statuteex post facto. In re Tyson,30 Colo. 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.Peoplev.Hayes,140 N.Y. 488, and other cases cited in 95 N.W. 518.Hartungv.People,22 N.Y. 695, distinguished.
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.Page 325
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 anex post factolaw. 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 asex post factowith reference to that crime.Calderv.Ball, 3 Dall. 386, 391, Chase, J.; Story's Const. § 1345; Cooley's Const. Lim. [*]267;Commonwealthv.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 accusedPage 326to obtain a pardon or commutation from the Governor of the State before his execution.
Nor was the punishment, in any substantial sense, increased or made more severe by substituting close confinement in the penitentiary prior to execution for confinement in the county jail. It is contended that "close confinement" means "solitary confinement," andMedley's Case,134 U.S. 160, is cited in support of the contention that the new law increased the punishment to the disadvantage of the accused. We do not think that the two phrases import the same kind of punishment. Although solitary confinement may involve close confinement, a criminal could be kept in close confinement without being subjected to solitary confinement. It cannot be supposed that any criminal would be subjected to solitary confinement when the mandate of the law was simply to keep him in close confinement.
Again, it is said that the law in force when the crime was committed only required confinement, whereas the later statute requiredcloseconfinement. But this difference of phraseology is not material. "Confinement" and "close confinement" equally mean such custody, and only such custody, as will safely secure the production of the body of the prisoner on the day appointed for his execution.
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 matter he is not entitled to be heard.
The views we have expressed are in accord with those announced by the Supreme Court of North Dakota.Statev.Rooney,12 N.D. 144,152.
We are of opinion that the law of 1903 did not alter thePage 327situation to the material disadvantage of the criminal, and, therefore, was notex post factowhen applied to his case in the particulars mentioned.Judgment affirmed.