The conclusions to which I have come upon the examination of this case are the following:
1. As the offence was committed while the act of 1860 was in full operation, the judgment should have been the one prescribed by that act, namely, that the convict should suffer the punishment of death, and that he should be confined at hard labor in the state prison until such punishment should be inflicted, but that he should not be executed in pursuance of such sentence within one year from
The judgment of the oyer and terminer which was affirmed by the supreme court condemned the convict absolutely to the punishment of death by hanging, on a day about five months after the conviction, without requiring any warrant to be issued by the governor. This was a wide departure from the mandate of the statute, and was clearly erroneous. It is claimed to have been justified by the effect of the act of April 12, 1862 (chap. 197, p. 368). The first section repeals the act of 1860, and another act not material to the present purpose. But that repeal was wholly prospective, and did not affect the punishment of offences committed before such repeal. This is expressly declared by the second section, which is in these words: “ No offence committed previous to the time when this statute shall take effect, shall be affected by this act, except that where any punishment shall be mitigated by the provisions of this act, such provision shall control any judgment to be pronounced after the said act shall take effect for any offences committed before that time.”
It is argued that the word offence as first used in the section, does not embrace the idea of punishment. But I am of opinion that such a construction would be altogether too narrow. The whole scope of the statute concerns the punishment of crimes; and when it is said that no offence
2. The remaining question is, whether the judgment, should be reversed and the prisoner discharged according to the former rule, or the record be remitted to the oyer and terminer, to pass a legal sentence upon the conviction. This latter course is now authorized by statute (Laws of 1863, ch. 226, p. 406). The conviction was legal, and the sentence only was erroneous. The only question is, whether the act, having been passed after the conviction, though before the judgment was given in the supreme court, could be applied to the case. I am of opinion that it can be applied. The forms of judicial proceedings are under the control of the legislature. The case is not within the constitutional provision which forbids a person being twice put in jeopardy for the same offence. A person is said to be put in jeopardy only when he is a second time tried upon a criminal accusation, but the term has no relation to the reversal of an erroneous judgment, and pronouncing a legal one, pursuant to one legal conviction. It may be of some importance to inquire when the existing judgment was pronounced in the oyer and terminer, in reference to the time of the passage of the act of 1863. The narrative parts of the record would seem to show that it was on the 20th April, 1863, which is prior to the passage of the act. But the record also states that on the 25 th of June following, a motion was made in the oyer and terminer for the arrest of judgment, and that it was denied on the 3d day of August ensuing. Such a motion can only be made on the
If I am sustained by my brethren in these views, such is the judgment which must be given on this writ of error.