*482The opinion of the court was delivered by
Horton, C. J.:The questions presented to this court for decision are—
First, Whether the punishment under ch. 166, Laws 1872,. applies to offenses committed prior to that act?
Second, If the provisions of ch. 166, Laws 1872, are not applicable in this case, whether the prisoner can be relieved, under a petition for a writ of habeas corpus ?
*483ch. 166, Laws Of 1872,if - ' Sevo?d?tive’ *482If the act of 1872 is an ex post facto law, it is unconstitutional, and void, as the legislature cannot pass such a law. The supreme court of the United States has defined an ear post facto law to be one which renders an act punishable in a manner in which it was not punishable when it was committed. (Fletcher v. Peck, 6 Cranch, 138.) This definition is-subject to the qualification that where the new law mitigates the character or punishment of a crime already committed, it does not fall within the prohibition of the constitution, for it then is in favor of the citizen. As the law of 1872.pre-scribes a year’s imprisonment at hard labor in the penitentiary in addition to the punishment of death, if intended to apply .to murder previously committed, it certainly changes-the punishment authorized to be inflicted when the crime was-committed. Counsel for the state contend, however, that the practical effect of the act is to change the punishment of death to imprisonment for life; and that therefore the law is valid as to offenses already committed, even if thereby it is retrospective in its operation, because such change-mitigates the penalty. The reasoning is not sound, as the convict can be executed at the pleasure of any executive-magistrate, at any time after one year. One governor may refuse to issue his warrant for the execution of the sentence, but his successor may determine otherwise, and order the hanging of all the convicts. Under the act, every moment of the prison life of the convict, after the expiration of one year, like the alleged lot of Damocles, is embittered by the dread of impending death. The sword is indefinitely suspended over his head, ready to fall at any time. Some *483argument may be presented, that the postponement of the execution of a death sentence a single year modifies the penalty. Much theorizing may be indulged in upon this point, but all of this is mere speculation. We cannot open the curtain of the future, nor foretell the ultimate condition of a convict after death. We have no absolute means of saying whether the old or the new law would be the more severe in a given case, and hence we cannot affirm that said act of 1872 mitigates the punishment. The courts of New York hold that a law similar to this one, which was substituted for a law like ours in force prior to the passage of said act, inflicts a greater punishment than the former law, and Judge Cooley coincides with that view-in his Constitutional Limitations. Therefore, if we regard said'act of 1872 as retrospective, it is within the condemnation of the national constitution, and void. (Cooley’s Const. Lim. 256, 272; Hartung v. People, 22 N. Y. 95; Hartung v. People, 26 N. Y. 167.) This conclusion leads us to decide that as the murder with which the petitioner stands charged was committed in 1866, and as the law of 1872 was not passed until after the commission of the offense, the prisoner is not subject to the punishment of the act of 1872. If he is not exposed to the infliction of any penalty under the statutes in force prior to the act of 1872, then as that act cannot apply in this case, the sentence and judgment are wholly void.
*484'fora,limas, 32, followed. „ „ .... , wj¡m m“euef; under' *483If such sentence and judgment are wholly void, and not merely irregular or erroneous, then the petitioner is entitled to his discharge. This brings us to consider the effect, as an original question, of the repealing clauses of the act of 1872. In the opinion of the writer, it-was the manifest intent of the legislature to have the act of 1872 apply retrospectively in all cases where the convict or person guilty of murder' in the first degree had not been sentenced prior to that act going into effect; that the law-makers supposed they had the power to enact such legislation, and intended, by the repealing sections of the act of 1872, to expunge the sections therein repealed as completely as though they had never existed *484This court, however, has decided, upon full argument and a careful consideration of the case, very differently, in the case
of The State v. Crawford, 11 Kas. 32; and my brethren think that case should be adhered to. , Under that authority, the action of the legislature, in adopting the act of 1872, did not release the petitioner from the penalty of his offense, and the district court did not lose jurisdiction with the return of the verdict of the jury. Under the verdict, he was liable to be sentenced to the punishment of death. The sentence actually passed, omitted the appointment of a day on which the sentence should be executed, and provided that the governor should set the day of the execution at a time not less than one year from the day of sentence; but this was an irregularity, or rather an erroneous order, to carry out the sentence of death, and not a void judgment. The court had jurisdiction of the person of the prisoner and of the offense. The verdict was valid. The court had also the power to render a judgment of death, and therefore the petitioner cannot be relieved on habeas corpus, as our statute declares that no court or judge shall inquire under a petition for habeas corpus into the legality of any judgment or process whereby a party is in custody upon any process issued on any final judgment of a court of competent jurisdiction. This court cannot furnish any remedy to the petitioner in this proceeding. In other words, the proceeding by habeas corpus is not the proper manner to correct or review the sentence in this case. Upon an appeal, all the rulings' of the district court may be reviewed, and the erroneous judgment be set aside or modified, as the legal rights of the petitioner shall demand.
The petitioner must be remanded to the custody of the warden.
Brewer, J., concurring. Valentine, J., concurring specially, as follows: