dissenting: *
I am unable to conc'ur with my brothers in their construction of the act of Congress which provides that when an accused person shall be found guilty of murder, the jury may qualify their verdict by adding, “without capital punishment.”
In my opinion, the language of the act is plain and affords no room for construction—for appeal from its letter to its spirit.
Public policy in f'espect of the punishment of offenses is a matter within the exclusive control of Congress, and departures therein, whether to be regarded as wise or unwise, must be given effect to as declared.
To my mind, it appears plain, that whilst Congress did not abolish capital punishment for the crime of murder, it nevertheless committed the matter of its infliction to the uncontrolled discretion of the jury in each case.
If it had been intended that the exercise of this power of *154commutation of the death penalty should depend upon the court, or upon the jury, subject to the advice and admonition of the court, I think it would have been expressly so-declared.
Whethei’, in the exercise of an unlimited discretion, juries may or may not make distinctions between criminals, not justified by the conditions of their respective cases, or, in practice, virtually abolish the death penalty, is wholly beside the question. In the exercise of its own undoubted discretion in the premises, Congress has seen proper to commit the power to the jury, and to the jury alone.
In construing the statute to mean that the court may, without error, admonish the jury in respect of the grounds-upon which they may commute the death penalty by the addition to their verdict, it is not denied that he is compelled also to instruct them that it is their privilege to exercise the power notwithstanding.
With such instructions as were given in this case, no jury, composed of good citizens, accustomed, as it is their duty, to accept and apply the. law as given them in charge by the court, could have extended clemency to any one of these appellants.
After such an admonition, to such a jury, the further information that they might, nevertheless, commute the punishment was but a meaningless formality. It did not give the accused the benefit of the statute.
I can not accept as sound the argument that the purpose of Congress in this enactment was substantial^ the same as-shown in the legislation of the States, whereby the offense of murder has been divided into two degrees—murder of the first and murder of the second degree.
On the contrary, it seems to me that there is a substantial difference of purpose. Under the State statutes referred to, murder of the first degree consists of homicide committed in the perpetration of offenses like rape, robbery, arson and burglary, or by poison, starvation, torture, and so *155forth, showing express malice. All murder not included in. the definition of the first is murder of the second degree.
In the enforcement of those statutes the courts are required to declare the law to the jury in application to the facts. Where the evidence shows plainly that the accused,, if guilty at all, is guilty of murder of the first degree and nothing less, it is the duty of the court to withhold from the jury the privilege of returning a verdict of guilty of' murder of the second degree. The court is not required to-submit the question of the degree of guilt to the jury, regardless of the evidence, as under the act of Congress it is-compelled to extend to them the privilege of commuting-the death penalty:
If the purposes of the two sets of statutes are the same, it would be more reasonable to hold that, under the act of Congress, the right to commute the death penalty should-not be accorded to the jury at all, unless the evidence should discover something tending to warrant the exercise-of clemency.
For the reasons given, I am of the opinion tha.t the judgment in each case should be reversed.
The judgment in this case was reversed by the Supreme Court of the United States, to which court the case was-taken on writ of error, January 3, 1899.
This dissenting opinion applies as well to the cases of Smith v. United States, post, p. 155, and Winston v. United States, post, p. 157.