By the court, Campbell, J.
The prisoner, Harvey Done, was tried and convicted at the Madison County Oyer and Terminer, in April, 1862, of murder in the first degree, and was sentenced to “suffer the punishment of death prescribed by law, and that he be imprisoned in the State prison at Auburn until such punishment be inflicted.” Before sentence, the counsel for the prisoner moved in arrest of judgment, on the ground that the sentence provided by the act of 1860, defining the crime and punishment of murder, could not be executed; that the act of 1860 repealed the mode of punishment as provided in the Revised Statutes, and that the act of 1861 repealed the act of 1860, so that the prisoner cannot be sentenced for the crime of murder in the first degree, as his rights were fixed under the act of 1860; that it was unlawful for the court to pass any judgment against the prisoner; that if the court should sentence the prisoner under the act of 1860, it would be unlawful to execute the sentence, and that by the laws of the land, no sentence or judgment can be made or executed in this case:—all and each of which points were overruled, and counsel excepted. The murder of which the prisoner was convicted was committed in December, 1860, after the passage of the act of that year. The punishments in England, when the offender was to suffer death, were [383] inflicted in various ways. "Under the directions of military courts he was shot. When condemned by ecclesiastical tribunals, he was not unfrequently burnt at the stake, as if his priestly judges designed that the heretic, on going out of this world, should have a foretaste of the punishment to which they also consigned him in the next. For treason against the state the great sword of justice was to fall. The condemned" man was sentenced to be hung, taken down while still alive, beheaded, disemboweled and quartered; with few exceptions, however, the axe of the executioner only was used, and the criminal was simply beheaded. If, however, in case of high crimes, especially treason, the prisoner stood mute and refused to plead, he might be sentenced to be pressed to death, a punishment inflicted by placing the prisoner on his back, naked, in a cold dungeon, with" his arms and legs extended by cords to the four corners, and with iron or stone laid on his breast, and then left till death from cold, or pressure, or exhaustion, came to his relief. Lastly, for the crime of murder and numerous other felonies, the criminal was sentenced to be hung by the neck till he was dead. In Hew York we had no conviction, so far as I am informed, of any person charged with heresy. In 1705, during the administration of Lord Corn-BURY, the Rev. Francis McKemie was indicted and tried in the city of- Hew York, for preaching without the Queen’s (Anne) license. The trial was not in an Ecclesiastical Court, but in the Supreme Court. McKemie was a Scotch Presbyterian, and he defended himself, maintaining with marked ability that preaching the gospel was no crime at the common law; and the jury, notwithstanding the marked partiality of the court against him, rendered a verdict of acquittal. A few years prior to that, Colonel Hicholas Bayard and Alderman John Hutchings were tried, also, in the city of Hew York, on indictments for high treason. Both were convicted and sentenced to be hung, emboweled and quartered. They were among the most eminent citizens in the province of Hew York, and their trial and conviction were, as they had often been in England, the fruit of party rancor and judicial cor[384] ruption. The sentences were afterward reversed by directions sent out from the English government. With the exception of the trials of Leisler and Milbourne, both of whom were convicted and executed by hanging, these, I believe, were the only trials for treason in New York while a province. The extreme punishment of emboweling and quartering was never inflicted. Of burning at the-stake we have several melancholy instances, none, however, for heresy. This punishment was inflicted, so far as I have been able to ascertain, upon oppressed and despised races. Thus, in 1707, Lord Cornbury, governor, in writing to the Board of Trade in London, says, that “a most barbarous murder has been committed upon the family of one Hallet, by an Indian man slave and a negro woman,” and he-adds, “I immediately issued a special commission for the' trial of them, which was done, and the man sentenced to be hanged and the woman burnt, and they have been executed.”
In 1712, Robert Hunter, then being governor of New York, in writing to the Board of Trade, among other things, speaks of a slave insurrection and the killing of several whites by the negroes. He says, the slaves were arrested and “ forthwith brought to their trial before the justices of this place, who are authorized by act of assembly to hold a court in such cases. In that court were twenty-seven condemned, whereof twenty-one were executed; one being a woman with child, her execution by that means suspended; some were burnt, others hanged, one broke on the wheel, and one hung alive in chains in the town; so that there has been the most exemplary punishment inflicted that could possibly be thought of.” He might well have added, as he did, “ which only this act of assembly could justify ” (See vol. 5, Colonial His., pp. 39, 341.) In 1741-42, there occurred what has become historically famous in this State as the negro plot, wherein love of freedom in the negro, introduction of popery, incendiarism and plunder are combined^ Thirteen blacks were burnt at the stake, and one white man and one negro were gibbeted. (See pamphlet containmg trial, and Smith's History of New York, vol. 2,pp. 70-72.) [385] About 1772, or 1773, a negro man was burned at the stake in Johnstown, then the county seat of Tryon county, for a rape committed on a white woman. There may be other instances, but those mentioned are enough to require in the bill of rights that neither “ cruel nor unusual punishments shall be inflicted,” and also in the Constitution of 1777, to call for the declaration that- “ freedom of profession and religious worship should be allowed in this State to all mankind,” and that the principles of rational liberty required us to “ guard against the intolerance wherewith wicked priests and princes have scourged mankind. ” I have run over this brief outline history of the punishment of death for crimes anterior to the Revolution, for the purpose of showing that there was a cause for the declarations in the bill of rights, and, also, as it tends to shed . light on the subsequent legislation in relation to capital punishment in our State. It will be seen, that under that legislation the punishment of death must be inflicted by hanging, and that burning at the stake, quartering and disemboweling, breaking on the wheel and gibbeting alive, would no longer be allowed, whether the power to do so was derived from colonial acts, from the common law, or whether the condemned parties were Indians, negroes or white men. Our bill of rights had declared that neither unusual nor cruel punishments should be inflicted. Burning at the stake, if it had hot been an unusual, was a cruel punishment, so was breaking on the wheel, and so was gibbeting alive. All these punishments had been inflicted while New York was an English province. The Revised Statutes of the State declared that “ punishment of death shall in all cases be inflicted by hanging the convict by the neck until he be dead.” (Title 1, § 25, ch. 1, part 4, Concerning Crimes and Punishments.) The 16th section, in title 7 of the same chapter, and part, declares that “ all punishments prescribed by the common law for any offense specified in this chapter, and for the punishment of which provision is herein made, are prohibited.” When the act of 1860 repealed section 25 there was no punishment prescribed for murder in that first chapter, nor in any other part of the statutes. -The [386] prohibition no longer extended to the punishment "prescribed by the common law for that crime. But the punishment which the common law prescribed was precisely the same as declared by section 25, above quoted. The condemned man was hung by the neck till he was dead. Hanging by the neck was the general mode by which capital punishment was inflicted. The other modes were the exceptions. “If a statute makes any new offense felony, the law implies that it shall be punished with death, viz., by hanging.” (Jacob's Law Dic., title Felony, and citing Hawkin's P. C., 1, ch. 41 and §§ 4, 12, ch. 48.) The act of 1860 starts in the first section with the declaration that “no crime hereafter committed, except treason and murder of the first degree, shall be punished with death in the State of Hew York.” The 2d section defines what is murder in the first degree. There is no declaration in the act in positive terms that such murder shall be punished with death, though the whole act would seein to proceed upon that assumption. Such affirmative declaration, in my judgment was not necessary. The crime of murder was well known and understood. It commenced with the history of our race, and has accompanied it in all ages, and will probably continue as long as human passions exist.
The punishment has been various . among different nations. But in England, throughout her entire history, in the province of Hew York and in the State of Hew York, the punishment has always been inflicted by hanging the criminal by the neck. (See English State Trials, commencing in the fourteenth century, in which it will be found that in every case of simple murder the sentence was that the prisoner be hung by the neck.) Of course I do not refer to the killing of a husband by the wife, or a master by the servant or slave, which constituted what was termed petit treason, nor to the acts’ of assembly for punishment of negroes, already referred to, but murder, as generally understood and defined, and what the legislature must have understood by the term when they enacted the law of 1860. Unless, then, we hold that the repeal of section twenty-five, of the chapter and title of [387] the statutes above referred to, also repealed and made null and of no effect the rule of the common law which prescribed the punishment for murder, then- this prisoner, who was found guilty of murder in the first degree, should suffer the punishment of death, and that punishment should be inflicted by hanging by the neck till he is dead. As to sections twenty-four and twenty-five, the original note of the revisers was: “ The last two sections are new; possibly such would be the present law, but it is so doubtful that it is deemed highly important to declare it." So far as section twenty-five declares what is the mode of punishment of the crime of murder, that is by hanging, I apprehend there could not have been doubt, but as to other crimes, especially treason, there was unquestionably grave doubt. But if section twenty-five simply declared the law, its repeal does not of itself render the law which it declared null and void. In my judgment, therefore, when the act of 1860 repealed section twenty-five, it left the common law mode of inflicting punishment by death, namely, by hanging, in full force and effect, and when this prisoner was sentenced to suffer the punishment of death prescribed by law, he .was virtually sentenced to be executed in the mode which the common law required, by hanging by the neck till he was dead. Prior to the act of 1860, the court, when a convict was sentenced to the punishment of death, was required to make out and sign and deliver to the sheriff a warrant stating the conviction and sentence, and “ appointing the day on which such sentence shall be executed.” (§ 11, title 1, ch. 1,'part 4, it. iS.) How, by the act of 1860 the convict is not to be executed “ until a warrant shall be issued by the governor, under the great seal of the State, directed to the sheriff of the county in which the State prison may be situated, commanding the said sentence of death to be carried into execution.” If the act gives to the governor the power, by implication or otherwise, to issue his warrant for -the execution of the prisoner, that warrant would fix the time, and doubtless should specify the mode of the execution the same as is pointed out by the common law. But whether the power is given or not, it is [388] not necessary for us to determine. The court did all that it was required, and all it could do, when it pronounced the sentence that the prisoner should suffer the punishment of death, and be imprisoned till such punishment be inflicted. If¡ by reason of a defect in the law, the governor may not have to order his execution, or if, for any other reason, his punishment shall be virtually commuted to imprisonment for life, the prisoner has no cause or right to complain. He committed the crime when the act of 1860 was in full force. He was found guilty of murder in the first degree. A part of the sentence required by that act is, that he be imprisoned until the “ punishment of death shall be inflicted.” If we are right in the. view that the punishment of death by hanging still remained in full force under the common law after the repeal of section twenty-five by the act of 1860, then the sentence of imprisonment may be carried out; because, even if the' governor have the power of ordering the execution of the prisoner, he may never see fit to issue his warrant for that purpose. He may thus virtually allow the punishment of death to be commuted for imprisonment. It would only be under the supposition that there was no longer any punishment by death for the crime of murder, and therefore the prisoner could not be sentenced to suffer that punishment, that the ground could be maintained that the imprisonment was but an incident to the death punishment, and therefore must fall with it, so that virtually if there was no law for the sentence that the prisoner should suffer the punishment of death, he could not even be imprisoned. Such was the result that the counsel for the prisoner contended for on the argument in this case.
But, in my opinion, the imprisonment would be legal and right if the punishment of death remains,, even though the governor may not feel authorized, under the act of 1860, to issue his warrant for the execution of the prisoner. The nice question which arose in The People v. Hartung (22 N. Y. R.), is not in this case. In that, as to Mrs. Hartung, the act of 1860 was passed after the offense had been committed, and it [389] was held that the provision for imprisonment in the State prison was as to her ex post facto and void, and it was on that ground chiefly, if not entirely, as I read the opinion of the Court of Appeals, that the judgment in that case was reversed and a new trial ordered.
The counsel for the prisoner also contends that the sentence or judgment is unauthorized, because the act of 1860 provides that the prisoner shall be sentenced to confinement and hard labor, and that, in the present case, the sentence is only imprisonment in the State prison, and, therefore, it is more severe than the act authorizes, as it amounts to a sentence to solitary confinement. I think a sufficient answer to this is, that' the general statutes in relation to State prisons in this State regulate the matter. The 126th section, page 1093, 3d volume, 5th edition, is as follows: All convicts in a State prison other than such as are confined in solitude, shall be kept constantly employed at hard labor during the day time, except when incapable of laboring by reason of sickness or bodily infirmity.” Mow, by section 131, page 1094, same volume, it will be seen, that in order to enforce discipline and secure entire submission and obedience, the warden of the prison may confine a convict in a cell, and retain him there until he shall be reduced to such submission and obedience. Hard labor is the rule of the State prison in this State. Solitary confinement is a mode of discipline. I am not aware of any case in which the sentence to the State prison condemns the prisoner to solitary confinement. By section 56, page 980, 3d volume, 5th. edition, it will be seen, that where any person shall be convicted of an offense punishable by imprisonment in a county jail, the court “ may sentence such person to be confined in a solitary cell, but such imprisonment shall, in no case, exceed thirty days in the whole.” The sentence of the prisoner to confinement in the State prison was necessarily a sentence of imprisonment at hard labor. The law regulating our State prisons determines it and makes the sentence definite and certain in that respect. Were it otherwise, I do not think we could say that the punishment was more severe. The grave controversy which once [390] arose as to -.whether solitary confinement entirely-, or solitary confinement at night, with hard labor with others during the day, and which divided the opinions of the friends and promoters of prison reform, had reference rather to the reformation of the prisoner, than to the severity of his punishment. Whether solitary confinement -was the most severe punishment, would depend much upon the habits and temperament of the prisoner, and still more on the manner in which it was enforced. Confinement in a dark and loathsome dungeon is one thing; in an airy and ventilated apartment another. The better opinion now prevails, generally, in. this country, and has, I believe, become settled conviction in this State, that' solitary confinement, at night, and labor in classes during the day, is best, on the whole, for the State, and best for the criminal. As remarked, however, before, the sentence of imprisonment is a sentence .to hard labor, as thus understood, labor in classes during the day, and solitary confinement at night, and this only varied when disobedience or disorderly conduct requires solitary confinement and short allowance of food to be resorted to as a part of the discipline of the prison.. I do not think the objection as to the sentence in words not stating that the prisoner was' to be kept at hard labor, well taken. '
On the trial, certain statements made by the prisoner after his arrest, were given in evidence, under the prisoner’s objection, but there were no specific objections “ on the ground that they were elicited by reason of hope dr favor, or that it would be better for him to confess.” The act of 1855 was amended, chapter 330, Laws of 1858, striking out “ from the Court of Oyer and Terminer of this State,” so that it is only in case of trials in the Court of General Sessions in the city of New York, brought up by writ of error, that the appellate court: may now grant a new trial, whether any exceptions shall have, been taken or not in the court below. But apart from this, even if we should review the matter, I do not think the state-' ments amounted to a confession. The prisoner simply indicated a spot where they might search for the bank bills inquired [391] about. Further search was made and the bills were found. They were found under a piece of carpet in the prisoner’s room. This fact could undoubtedly have been given in evidence, no matter under what circumstances the statement had been made by the prisoner — I mean the fact of finding the bills.
In The People v. McMahon (15 N. Y. R., 386), Judge Selden, speaking of confessions not voluntary, such as do not proceed from the spontaneous suggestion of the party’s own mind, free from the influence of extraneous disturbing causes, says that the confession is excluded, “because it is in its nature unreliable, and not on account of any impropriety in the manner of obtaining it, and that in this all the authorities agree.” In this case, so far as the prisoner gave information or intimated where the bills might be found, he was confirmed by other witnesses. As said by Phillipps (vol. 1. p. 116), “that part of his confession in which he has described a particular spot, or the place where the goods were concealed or deposited, would be inadmissible, unless confirmed afterward by the proof of finding them there.” In the case at bar, there was that precise confirmation. In the case of The People v. McMahon, it must be borne in mind that the question arose as to the statements of the prisoner before the coroner’s jury, made under oath. I do not think this case shows, so far as we have the evidence, any serious disturbing causes operating on the mind of the prisoner, which' should cause an exclusion of a confession, even if he had made one. But, as remarked, the statement which he did make, confirmed as it was by other witnesses who found the bills in the indicated place, was clearly admissible. (Cow. & Hill's notes to Phill. Ev., note 226, part 1.) In the note this language is used: “ There is a strong current of authority running with the text, that both the disclosure and the fact or circumstance connected with and going to its construction, shall also be received in evidence, and they go to the jury with their joint force.” This disposes of the only question which can be material, arising out of the admission or rejection of evidence on the trial.
[392] There was one exception to a portion of the charge, as follows': “ The prisoner’s counsel, in due time, excepted to that part of the charge wherein the court stated that the governor had refused to issue his warrant for execution, and also to that part of the charge that the Court of Appeals had advised the governor that it was inexpedient, in the present state of the law, to issue Ms warrant of execution. It was insisted by the counsel for the prisoner, that the direct effect of the charge was to lead to a verdict of guilty upon less evidence than the jury would have required in the absence of the charge. We cannot say whether this is so or not. Generally it may be true, that an intimation' given or opinion expressed by the judge as to the guilt or innocence of the prisoner, may have an effect upon the jury. Sometimes, owing to peculiar circumstances, it may be the duty of the judge to give an intimation, or at all events to so present the salient points of a case as to show the inclination of his own mind. But if, as in this case, he leaves fully and fairly the whole question to the jury, it is not error. The judge, after stating a fact that was notorious in the State, that the governor had not issued his warrant under the law of I860, and that the Court of Appeals had advised that it was inexpedient, instructed the jury that “they had nothing to do with the question of punishment wMch followed their verdict of conviction of murder, that that belonged to the law and not to them to decide.,” There was certainly no error in law in this part of the charge, The most that could be said was, that it was the statement of irrelevant matter. The judge, in effect, said that to the jury himself, when he told them that they had notMng to do with the question of punishment. But however that may be, and even though thé statement may have an influence on the jury, I do not see that there was any error in law. The whole matter having been submitted to the jury, they were told that their verdict had nothing to do with the question of punishment. That belonged to the law and not to them to decide.
The conviction and judgment of the Oyer and Terminer should be affirmed.