The prisoner was tried and convicted in the Court of General Sessions, of the crime of murder in the first degree, and was sentenced to imprisonment and death.
The murder was committed on the 14th of November, 1861. The trial took place on the 11th of December, 1861, and the *467prisoner was sentenced on the 4th of January, 1862, in the fourth week after the commencement of the December .term. The court had been extended for the trial of another case, and during the week for which it was so extended, the sentence took place.
The great question we are called upon to decide in this case, arises, upon the construction of the act passed in 1860, in “ relation to capital punishment, and to provide for the more certain punishment of the crime of murder.” (Laws of 1860, ch. 410.)
Prior to the passage of this act, the law for the punishment of murder was contained in the Eevised Statutes' (3d vol., p. 935).
The 1st section of this statute was simple and easily understood, and provided “ that every person who should thereafter be' convicted of treason, of murder, or of arson in the first degree, should suffer death for the same.” The same chapter provided for the mode of execution, and the time within which it should take place.
By the act of 1860, the 1st section of the chapter of the Eevised Statutes above referred to was amended so as to read as follows:
“ Every person ■ who shall hereafter be convicted of, 1st, treason against the People of this State, or 2d, of murder, or 3d, of arson in the first degree, as those crimes are declared in this title, shall be punished as herein provided.”
The effect of this amendment was-to abolish the section of the Eevised Statutes as it existed at the time of the passage of the act of 1860, and to substitute in its place the section as adopted in that act.
It was thus enacted by the 1st section of that chapter of the Eevised Statutes, as amended, that the. crime of murder should be punished as provided for in the title 1, chapter 1, of part 4, of Eevised Statutes. • There is no section in the whole title, which provides-any punishmént for murder.
There never was any such provision, except in the first section, which was virtually repealed and taken away by the *468amendment of 1860, and we look in vain throughout the whole chapter for any punishment to be inflicted for .this offense.
But, as if to destroy entirely the supposition that anything was to be left in the statute sanctioning the punishment of death for murder, under the provisions of that act, the law of 1860 also repealed the section fixing the time for executing such punishment, the provisions for submitting the case to the governor for revision before execution, the provisions for reprieves in certain cases for females, the mode of execution by hanging, the directing the execution in the prison yard, and the provision for another place of execution, in case the prison of the county was unfit therefor.
While, therefore, the amended first section' required the crime of murder to be punished as therein provided, the only portion of the chapter that contained any punishment had been taken away, and every portion of the chapter that contained anything relating to the punishment of death was utterly repealed.
We look in vain, therefore, throughout this title of the ¡Revised Statutes for any punishment prescribed for the crime of murder, and unless some other provision is made in another statute, no such punishment can be found in the laws of this State as they existed at the time of this offense.
In the act of 1860, there is no punishment expressly provided for murder in the first degree.
. The 1st section enacts that no other crime than treason and murder, in the first degree, shall be punished with death. .This is a provision for limiting the punishment of other offenses, not providing punishment for the excepted cases, and while the statute provides a punishment for murder in the second degree, for arson and other offenses, it leaves the punishment for the greater offenses not only undefined, but if they can be discovered at all from the act, to rest on inferences merely to be drawn from the negative provisions of the first section.
It cannot be denied that at the time of the commission of this offense there was no provision of the law directly pre*469scribing the punishment of death for treason or murder in the first degree, or directing any punishment whatever, and if the court directs the execution of the prisoner, or the sheriff carries out such direction, the court and sheriff must act, in taking the life of a human being, without any direct authority of law, and upon a mere inference to be drawn from a negative provision of a statute, and from the absence of any law providing any other punishments. When a public officer is called upon to take the life of another, he may well ask that his duty should be clearly laid down by the law; that such acts should not rest on mere inference or implication, but that he should have his warrant for what he does in the clear provisions of the statute and the mandate of the court. To take away the life of a prisoner under a doubtful construction of the law, or on a mere inference or implied authority from the absence of legislative provisions, might lead to a judicial murder rather than to carrying into effect the law of the land.
It is very clear that the legislature did not intend that all the offenses enumerated in the first section of the title in the Eevised Statutes above referred to, should be punished with death. In that section was included the offense of arson in the first degree, and not even by inference can any authority be found for a greater punishment for this offense than imprisonment at hard labor in the State prison.
So the General Term of this district held, in the case of Shepherd, and in that case the Court of Appeals have since-held that under the act of 1860 he could not be sentenced to any punishment. Whether such was the intent of the author of the act of 1860, in regard to the crime of murder, is a question not free from difficulty. The omission to provide, by direct enactment, any punishment for the highest crimes known to the law—treason and murder — the cautious repeal of every provision of the Eevised Statutes bearing upon the death penalty or relating thereto, especially the absolute repeal of the section providing the mode of execution by hanging, without substituting any other direction as to the mode by which death was to be inflicted, do not make the duty of the *470court clear or free from doubt, so as to warrant us in saying that the legislature clearly intended to retain the punishment of death for this offense.
I purpose now to examine the cases decided in the Court of Appeals, in which the act of 1860 has been tlie subject of discussion. These are, The People v. Hartung (22 N. Y. R., 95), and The People v. Shay (22 N. Y. R., 317).
It must be remembered that these cases were for offenses committed before the passage of the act of 1860, and the question involved in these cases was not whether offenses committed after its passage could be punished under it, but whether the repeal of the statute and the additional punishment of one year’s imprisonment, as provided for in the fourth section, did not prevent the execution of the judgment, and the court decided such to be its effects.
The reason given for the reversal of the judgment, was that there was not at the time any law which authorized or' sustained it, or which would warrant its execution; and in the case of Shay, all the exceptions at the trial, and the motion in arrest, were decided against the prisoner, but that judgment was also reversed, for the reasons stated, in the case of Hartung.
We have been referred to the views of the learned justice who delivered the opinion in those cases, as authority for holding that the punishment of death was retained by the act .of 1860.
The substance of these views is, that no law at the time contained any separate provision for the punishment of murder in the first degree, or which declared that any crime should be punished with death; that if there was any punishment, it could only be known by inference or implication; that in the first section, which declared that no crime but treason and murder in the first degree should be punished with -death, there “ is an implication in the nature of a negative pregnant, that those crimes should be so punishedthat in the fourth section of' the statute it was also implied that there were some crimes to be punished capitally, and, upon considering the whole law, that the intention to preserve the punishment of *471death, when the. governor shall approve of the sentence, in addition to imprisonment for one year, was so manifest that the court would assume such to be the effect of the statute.
It could not be necessary in that case to decide whether there was any punishment provided in the act of 1860 for the offenses of treason and murder in the first degree, if committed after the passage of the act. Although the act of 1860 provided that persons under conviction or sentence should be punishéd as if convicted under that act, still Judge Denio held that there was not at that time any law which authorized or sustained the judgment, or would warrant its execution.
We are left, then, to the simple question whether, when the statute contains no provision imposing the punishment of death for murder in the first degree, such punishment should be inflicted, merely because it might be inferred from the statute that the legislature supposed the punishment of death was retained, or that such punishment should be inflicted, because in another part of the statute provision was made as to the action of the governor before the sentence could be carried out.
I cannot assent to the proposition that the court should condemn to death simply because they can guess that the legislature intended to preserve this punishment. Nor do I assent to the conclusion that it is very clear that any such intention existed. The alteration of the section which contained this punishment of death, the omission to substitute any other punishment, the studied repeal of the provisions relating to such executions, and particularly the repeal of the section which declared the mode in which such death should be effected, seem to me rather,to imply that it was not intended to have such punishments continued. It is a well settled principle in the construction of a penal statute, that it must be construed strictly (Sprague v. Birdsall, 2 Cow. R., 419); and a penalty cannot be raised by implication, but must be expressly created and imposed. (Jones v. Estes, 2 Johns. R., 379.)
If so much strictness is required merely to impose a penalty *472for the violation of law, of how much more importance is it to require clear warrant for the penalty of death and full authority to take human life, not merely resting on inference and implication, but on the full and express provision of law therefor.
It has been suggested that the defect of our statutes might be remedied by invoking the doctrine that a repeal of a statute, without substituting any in its place, revived the rules of the common law. This may be so, and may relieve the difficulty which would exist as to the mode of execution; but a difficulty will at once arise from the fact that it is not a mere' repeal of a statute, but an amendment, in which the offense is regulated, and which purports elsewhere to provide a punishment, by directing that it should be punished “as is herein provided.” It can hardly be said that the statute on this subject is repealed, so far as to revive the common law offense of murder and the common law punishment, while that statute remains in force.
I am aware that, in The People v. Hartung (23 How. Pr. R., 314), a contrary opinion was expressed by Hog-EBOOM, J., as to the effect of the act of 1860 on this question ; but as the offense in that case was committed before the passage of the act, it can hardly be considered as controlling in this case.
The judgment should be reversed.
Judgment affirmed.1
Note. —This judgment was affirmed by the Court of Appeals, in October, 1863, but not on all the grounds stated in the above opinions. The leading opinion in the Court of Appeals holds that the court erred in naming the day for the execution of the prisoner, but that was not a sufficient reason for reversal; that the day should be left to be designated by the governor; that, though the statute, declaring that the punishment of death should be inflicted by hanging, is repealed, it does not abrogate the common law which prescribed the same mode of punishment. Baioom, J., said: “The proper sentence would have been, that the prisoner suffer death for the crime of murder in the first degree, in killing Samuel Hoffman, at the city of New York, on the 14th day of November, 1861, whereof he has been duly convicted, by being hung by the neck until he be dead, by the sheriff of the county in which he shall be imprisoned, at such time and place, after the expiration of one year from the date of his sentence, as such sheriff shall be commanded by a warrant issued by the governor, under