ON MOTION TO MODIFY OPINION. The Attorney General has filed a motion to modify the above opinion and in lieu of affirming the judgment of the trial court, which ordered that the death sentence be carried into execution by hanging, as was provided by law at the time of the sentence of the trial court, enter an order adjudging that the defendant be executed by the administration of lethal gas, as provided by an act of the Legislature of 1937. [See Laws 1937, pages 221 to 223.] Notice of the motion to modify has been served upon the attorney of record for the appellant.
It will be noted that the new act. Sections 3719, 3721 to 3725, inclusive, Article XIII, Chapter 29, Revised Statutes 1929, were repealed and seven new sections were enacted in lieu thereof. This new act repealed outright, without a saving clause, the law providing for the infliction of the death penalty by hanging. The new act substituted a new method: That death should be inflicted by the administration of lethal gas; and that such execution be carried out within the walls of the state penitentiary, under the supervision of the warden. [See Sec. 3723, Laws 1937, p. 223.] *Page 56
This question has been before the courts of some of our sister states, as well as the Supreme Court of the United States. In several cases it was held that under the laws of those states a change in the method of carrying out a death sentence would not affect cases then pending. For example: The State of Connecticut, by its laws, changed the method of inflicting the death penalty by hanging to electrocution. In Simborski v. Wheeler,183 A. 688, the Supreme Court of Connecticut held that a statute of that State, providing:
"The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect," acted as a saving clause, and therefore a defendant, who had been sentenced to hang before the law went into effect, could not be executed by the new method. The same ruling will be found in Washington v. Dowling,109 So. 588, 92 Fla. 601. Neither of these cases holds, however, that the change in the law violated any substantial rights of the defendant. The decisions were based entirely upon the proposition that the law contemplated that the cases then pending should not be affected by the new act.
The Supreme Court of South Carolina in State v. Malloy,95 S.C. 441, 78 S.E. 995, an exhaustive opinion, held that a change in the manner of inflicting the death penalty did not violate any rights of the defendant. The court said:
"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. 483, 11 Sup. Ct. 143, 34 L. Ed. 734.]
"`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.' [Rooney v. North Dakota, 196 U.S. 319, 25 Sup. Ct. 264, 49 L. Ed. 494, 3 Ann. Cas. 76.]" (Italics ours.)
The Supreme Court of the United States in Malloy v. South Carolina, 237 U.S. 180, 59 L. Ed. 905, 35 Sup. Ct. 507, approved the ruling of the Supreme Court of that state. The court in the course of the opinion said:
"Influenced by the results in New York eleven other States have adopted the same mode for inflicting death in capital cases; and, as *Page 57 is commonly known, this result is the consequence of a well-grounded belief that electrocution is less painful and more humane than hanging. [Storti v. Commonwealth, 178 Mass. 549, 553; State v. Tomassi, 75 N.J.L. 739, 747.]
"The statute under consideration did not change the penalty — death — for murder, but only the mode of producing this together with certain nonessential details in respect of surroundings. The punishment was not increased and some of the odious features incident to the old method were abated."
In Alberty v. State, 10 Okla. Cr. Rep. 616, 140 P. 1025, the Supreme Court of Oklahoma had the following to say, as to such a change in the law:
"We are of opinion that the provisions of Chapter 113, Laws 1913, applied to crimes committed prior to the time said act took effect, and are not repugnant to the provision of the Federal Constitution declaring that no state shall pass an ex postfacto law. [Art. 1, Sec. 10, Const. U.S.] It did not create a new offense, nor require the infliction of a greater or more severe punishment than the law annexed to the crime when committed. The changes effected related solely to penaladministration." (Italics ours.)
See also Shipp v. State, 130 Tenn. 491, 492, 172 S.W. 317, l.c. 318. In the State of Arizona a constitutional amendment substituted lethal gas for execution of the death penalty in lieu of hanging. [See Hernandez v. State, 43 Ariz. 424, 429,32 P.2d 18, l.c. 24, 25.] In Nevada a like substitution was made by the Legislature. [See State v. Gee Jon, 46 Nev. 418, 211 P. 678, 217 P. 587, 30 A.L.R. 1443.] In these cases the courts held that the substitution was made in an effort to provide a method of inflicting the death penalty in the most humane manner known to modern science.
[3] If, therefore, the change in the law under discussion did not affect any substantial rights of the defendant, either constitutional or statutory, but was passed for the purpose of providing a more humane manner of inflicting the death penalty, why should the new statute not apply to those cases pending at the time the change went into effect. Such statutes, as the above cases disclose, are not derogatory of any right a defendant had prior to the enactment thereof. In nature they are procedural, not substantive, and operate prospectively. The changes are intended to be a benefit and not a detriment. We have in our statutory law, Sections 661, 662, Revised Statutes 1929 (7 Mo. Stat. Ann., p. 4913), which to some extent are similar to the statute of the State of Connecticut, above referred to. The effect and purpose of those sections are to preserve substantial rights existing under a statute at the date an act to repeal such a statute takes effect. In the case under consideration no such right is affected by *Page 58 the change in the law. As the Supreme Court of the United States said in the Malloy case, supra:
"The punishment was not increased and some of the odious features incident to the old method were abated."
The same court said in Rooney v. North Dakota, 196 U.S. 319, 49 L. Ed. 494, 25 Sup. Ct. 264, involving a number of changes in the manner of inflicting the death penalty, including a change in the location where the punishment was to be inflicted:
"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 particular consequence to the criminal. On such a matter he is not entitled to be heard."
In Alberty v. State, supra, it was said: "The changes effected related solely to penal administration." We therefore hold that it was the intent and purpose of the Legislature of this State that the infliction of the death penalty under the laws of this State, after the taking effect of the new act, should be carried out under the method prescribed by the new act.
The question now presents itself whether this court or the trial court shall pronounce the judgment and sentence as provided for under the new act. In view of the procedure prescribed by the Legislature we deem it appropriate and proper to remand the case to the trial court for the purpose of passing sentence upon appellant.
It is, therefore, ordered and decreed that the opinion heretofore adopted by this court be modified; that the sentence to suffer death by hanging be set aside; that the conviction of appellant of murder in the first degree and the infliction of capital punishment be affirmed; that the case be remanded to the trial court and that that court, as soon as may be expedient, have the appellant brought before it for the purpose of passing a sentence in accordance with the provisions of Laws of Missouri, 1937, pages 222, 223. It is so ordered.