People v. McNulty

29 P. 61, 93 Cal. 427, 1892 Cal. LEXIS 578

• Court: California Supreme Court
• Decided: February 19, 1892
• Docket: No. 20659
• Status: Published

Opinion

McFarland, J.

The appellant was convicted of murder in the first degree, and sentenced to suffer the penalty of death; and from the judgment and an order denying a new trial he appealed to this court. This court examined and considered all the points made on the appeal, determined that no error had been committed at the trial, and ordered the judgment affirmed. Afterwards, however, and before the remittitur went down, upon the suggestion of a difficulty caused by amendments of the' law concerning the death penalty which had been enacted by the legislature after the conviction of the appellant, the judgment of affirmance was set aside, and an argument ordered as to the effect of said amendments. The amendments, if constitutional, repealed the former law upon the subject, and contained no express saving clause by which past offenses might be punished under the law as it stood at the time of their commission. But under the authority of the recent decision of the supreme court of the United States in Ex parte Medley, 134 U. S. 160, the change made by said amendments in the punishment was so material as to render it, as against appellant, ex post facto and void, under the constitution of the United States; and as the amendments, if constitutional, repealed the former law, there seemed to be no means left by which the appellant could be punished. The main question, therefore, before the court on the first argument was, whether the amendments were not unconstitutional in toto-, and thus inoperative as a repeal of the former law; and a majority of the court reached the conclusion, upon the views then presented, that it was so unconstitutional, and therefore left the law as it stood before the attempted repeal. The question, however, was of such importance that a majority of the court ordered a rehearing and a reargument.

The opinions of both the majority and minority of the court, on the first hearing of the question, were based upon the assumption that the amendment under review stood entirely without a saving clause, either in the amendment itself,, or in the general statutory law. Since the rehearing was granted, our attention has been called, for the first time, to section. 329 of the Political Code as constituting a saving clause fully covering the said amendments; and if it does- constitute such a saving clause, then the question, presents an entirely different aspect. In that event, the legislature could not be held as either intending the new law to apply to "past offenses, or as intending to allow past offenders to escape; but construing the new law as passed with the knowledge and in the light of the permanent saving clause existing in the general body of the law, it is clearly constitutional as to future crimes, while it leaves past offenses to be punished under the law as it was when the offenses were committed.

It is quite clear that a general saving clause, if it be clothed in apt language to express the purpose, is as efficient as a special clause expressly inserted in a particular statute. This proposition is too plain to need the support of authorities; but there are authorities directly to the point. (People v. Quinn, 18 Cal. 121; United States v. Barr, 4 Saw. 254; Jordan v. State, 38 Ga. 585; Volmer v. State, 34 Ark. 487; Acree v. Commonwealth, 13 Bush, 353; State v. Shaffer, 21 Iowa, 486; State v. Ross, 49 Mo. 416.)

In the statutory law of a number of the states there is a general saving clause, intended to prevent the miscarriage of justice in cases where the legislature should repeal or substantially change a penal statute, and neglect to put a special saving clause into the new enactment. Congress has enacted such a general saving clause, which is found in section 13 of the Revised Statutes; and when applying it in United States v. Barr, 4 Saw. 254, the United States district court explains the purpose and effect of such a provision as follows: “This section 13 is a salutary provision, and if it, or something like it, had always been incorporated in the statutes of the states and the United States, it would have prevented many a lame and impotent conclusion in criminal cases, in which the defendant escaped punishment because the legislature, in the hurry and confusion of amending and enacting statutes, had forgotten to insert a clause to save offenses and liabilities already committed or incurred from the effect of express or implied repeals.” The said section 13, and the saving clauses in the legislation of the various states which have enacted them, are all somewhat different from each other, and from section 329 of our Political Code; but they all have the same general purpose, viz., to prevent the mischief men» tioned by the United States district court as above quoted; and the language employed in each of them should be construed in the light of that purpose. Some examples of saving clauses in other states are as follows: In Georgia, the language employed is: “All crimes and-offenses committed shall be prosecuted and punished under the laws in force at the time of the commission of such crime or offense, notwithstanding the repeal of such laws before such trial takes place. ” In Arkansas, the language is: “When any criminal or penal statute shall be repealed, all offenses committed or forfeitures incurred under it while it was in force shall be punished or enforced as if it were in force, notwithstanding such appeal, unless otherwise expressly provided in the repealing statute. ” And in Iowa, the language is: “ The repeal of a statute does not revive a statute previously repealed; nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. ” These examples are sufficient to show the main purpose in view, and the variety of language used to express it.

Section 329 of our Political Code is as follows: “ The repeal of any law creating a criminal offense does not constitute a bar to the indictment or information- and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment is expressly declared in the repealing act.” Now, the impression which a first reading of this section naturally leaves upon the mind of the reader is, that it is substantially the same as the saving clauses in other states to which we have alluded; and closer inspection of the language used, and full consideration of the objections made to it by appellant, only make that first impression stronger and surer. The stress of appellant’s argument is upon the words “law creating a criminal offense”; and the contention is, that a law repealing the punishment of an offense is not to be brought within the meaning of a law repealing a lawcreating” an offense. (We do not deem it necessary to here quote in full the old and the new law upon which the question under discussion arises. It is sufficient to say that when appellant committed the crime of which he was convicted certain sections of the Penal Code provided for the death penalty; and that afterwards, on March 31, 1891, the legislature passed an act by which it amended and re-enacted those sections, and in the sections thus re-enacted provided for what is admitted to be a different and more severe punishment. The sections of the Penal Code which define murder were not changed. The most important sections of the Penal Code thus changed are sections 1217, 1227, and 1229; and the act changing them is to be found commencing on page 272 of the statutes of 1891. The act contained no expression of intent to bar an indictment or information for a past offense, or the punishment thereof.)

The contention of appellant rests upon the position that the description or definition of acts necessary to constitute a crime creates the crime, and that unless the definition in a law creating a crime is repealed, there is no repeal of such law within the meaning of the Political Code. But that position cannot be maintained. A description of acts necessary to constitute a crime does not make the commission of such acts a crime; punishment is as necessary to constitute a crime as definition. Without either, there is no crime; and the repeal of either leaves no crime. What constitutes a crime is definitely stated in section 15 of the Penal Code as follows: “A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: 1. Death; 2. Imprisonment; 3. Fine; 4. Bern oval from office; or 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state.” And so we think that a close analysis of section 326 removes all the refined distinctions by which its apparent general purpose is sought to be thwarted.

The case of State v. Shaffer, 21 Iowa, 486, is very-much like the case at bar. In that case, section 4324 of the Criminal Law of Iowa had been amended, after the commission of the crime charged against the defendant, so as to merely change the punishment, and it was contended that the amendment took away the jurisdiction of the court in which he was tried. But the court, after citing section 29, which contained the general saving clause (heretofore quoted in this opinion), says: “ The amendment to section 4324 is to be construed in connection with this section, and with such section it is equivalent to adding to such amendment, ‘provided that such amendment shall not affect any penalty incurred under the section aforesaid.’ This subdivision of section 29 of the revision was not presented by counsel, and hence not passed upon by the court, in the case of State v. Burdick, 9 Iowa, 402.” In People v. Tisdale, 57 Cal. 104, there is some discussion of section 329 of the Political Code; but at the time of the commission of the crime there charged, the defendant could have been proceeded against by indictment only, and not by information; and at the time of the decision, section 329 did not contain the word “information.” But the defendants were prosecuted by information under a subsequent law; and the court held that section 329 could not be applied, because there was no power to inject into it the word “information,” saying: “We do not think that the respondents in this case could be held to answer for the offense with which they are charged, ‘unless on presentment of a grand jury.’” This is all that was decided; and it does not touch the point involved in the case at bar. It seems clear enough that the section, at least as it then stood, could not be applied to the attempted prosecution by information of a crime which, at the time of its commission, could be prosecuted only by indictment; but the extent to which the court discusses the question there involved shows that it must have considered section 329 as of wide-reaching influence. There are no other decisions in this state to which our attention has been called that throw further light upon the question.

It is quite clear that the act of March 31, 1891, repealed all contained in the sections amended that is not contained in the said sections as re-enacted, and thus repealed the former punishment. Indeed, counsel for appellant not only admit this proposition, but they declare it as the very basis of their contention, that there is now no law by which their client can be punished. They say in their brief: “That these amendments absolutely and completely wiped out the old sections of. the Penal Code there can be no question.” And this is clearly so. The language of the act, as to each section, is, that the section “ is hereby amended so as to read as follows ”; and of course everything not put into the section as re-enacted vanished. The effect of such a re-enactment is well stated in the opinion of the court in State v. Ingersoll, 17 Wis. 634. It was there contended that a certain section 5 of chapter 35 of the Revised Statutes had not been repealed; but the court say: “We are satisfied, however, that this is a mistake, and that that section had been repealed by chapter 147, above referred to. For that chapter provides that ‘ section 5, chapter 35, of the Revised Statutes, entitled “Of Excise,” is hereby amended so as to read as follows,’ etc. Now, the conclusion is irresistible that any provision of section 5 not found in this chapter is repealed. This must be so, since the legislature says expressly that that section shall thereafter read and be to the effect following; then going on to enact a complete substitute for the former provision. In what clearer manner could the legislature indicate its intention to supersede, change, and repeal section 5 than by the one adopted? It is amended so as to read and be to the effect therein prescribed, and quite different from what it was as it formerly existed. An examination of our statutes will 'show that this method of superseding and changing the existing law is frequently resorted to, and it certainly leaves no room to doubt as to what the legislature intended. The legislature, in effect, says that such a provision of law shall he read and construed to be as therein declared, and shall have no other meaning or effect given to it. (See State v. Andrews, 20 Tex. 230.) Section 5, therefore, being superseded, changed, and repealed by chapter 147, was not in force when the trial was had in this case, and furnished no authority to the court to give judgment upon it. It can no more be said to exist for the purpose of regulating the punishment applicable to the offense here complained of than one committed since the law of 1862 went into operation.” (See also, on this point, United States v. Barr, 4 Saw. 254.) And of course the materiality of the difference between the punishment prescribed by the old sections, and the punishment prescribed by them as re-enacted, is admitted by appellant; for upon that materiality depends his whole contention that the re-enactments are as to him ex post facto.

Our conclusion is, that under section 329 of the Political Code the appellant is to be punished under the law as it existed at the time of the commision of the crime of which he was convicted; and that, under this view, the said act of March 31,1891, is constitutional, because not intended to apply to past offenses, but to be prospective only, in its operation.

The judgment and order appealed from are affirmed, and the superior court is directed to take further proceedings in accordance with this opinion.

Paterson, J., Sharpstein, J., Gtároutte, J., and Beatty, C. J., concurred.

Harrison, J., and Db Haven, J., dissented.

The following is the opinion above referred to, rendered in Department One on the'1st of May, 1891: —

Foote, C.

The defendant, McNulty, was charged by information with the murder of “ one James Collins.” He was convicted as charged, and prosecutes this appeal from the judgment rendered against him, and from an order denying a new trial. “The defense set up at the trial was insanity. The bill of exceptions is the charge of the court.” The grounds of error alleged are, that the court in its instructions charged the jury that the defendant must establish the fact of insanity, after proof of the alleged killing, by a preponderance of evidence; his contention, in brief, being, that sanity is a necessary ingredient in the guilt of one charged with murder; that such guilt must be proved beyond any reasonable doubt; and hence, if the evidence discloses a reasonable doubt as to whether a defendant is sane, he must be acquitted. The question, which is exhaustively presented, and the authorities fully stated and discussed, has recently been settled by an opinion of the appellate court of this state in People v. Travers, 88 Cal. 233, which, as to the matter in hand, reads thus: “ 3. In the instructions given upon the subject of insanity, there was no error prejudicial to appellant. They are somewhat voluminous; but the main proposition contained in them was, that a person is presumed to be sane until the contrary is shown, and that the burden is on a defendant of showing insanity., by a preponderance of evidence. This rule has been established in this state by a long line of authorities. (People v. Myers, 20 Cal. 518; People v, Coffman, 24 Cal. 237; People v. McDonnell, 47 Cal. 134; People v. Wilson, 49 Cal. 13; People v. Messersmith, 61 Cal. 246; People v. Hamilton, 62 Cal. 377; People v. Kernaghan, 72 Cal. 609; People v. Eubanks, 86 Cal. 295.) And this long line of decisions cannot be held to have been overruled by People v. Bushton, 80 Cal. 160, where the defense was accident, and People v. Elliott, 80 Cal. 296, where the defense was self-defense. In those cases the court was dealing entirely with those ‘ circumstances ’ referred to in section 1105 of the Penal Code which mitigate or justify or excuse an act done by a sane man who might commit a crime; and its attention was not called in any way to that unusual and peculiar mental condition called insanity’ which renders a man utterly incapable of committing crime at all. In the opinion of the court in People v. Bushton, 80 Cal. 160, reference is made to People v. Smith, 59 Cal. 607, and People v. Flanagan, 60 Cal. 3, 44 Am. Rep. 52, in which the very doctrine of the Bushton case was stated; but in those cases—where the defenses were self-defense and defense of property — the court certainly did not intend to overthrow the settled rule of the court on the subject of insanity. We are clear, therefore, that the undisturbed law of this state still is, that the burden of showing insanity is upon a defendant who seeks shelter under it as a defense.” This disposes of all the points made by counsel for the defendant.

An attorney permitted to file a brief as amicus curias has raised certain points as to the minutes of the court not showing that certain things were done which are required by law, and that the judgment was insufficient as not showing that the defendant had been convicted of murder in the first degree, although it does state that the sentence was “for the murder of James Collins on the twenty-fifth day of March, 1888, of which you have been duly convicted.” The judgment was sufficient, as stating the general offense “ murder ” for which the defendant was convicted. (Ex parte Murray, 43 Cal. 455; Ex parte Simpson, 47 Cal. 127.) It appears that, upon a suggestion of the diminution of the record, there was filed here a certified copy of the minutes of the trial court, containing, among other things, an amendment of the minutes nunc pro tunc as to the fact that when the defendant appeared for judgment, he was asked “ if he had any legal cause to show why judgment should not be pronounced against him.” This amendment could be made by the trial court so as to conform to the true state of facts, even pending appeal. (People v. Murback, 64 Cal. 372.)

As to all other matters which it is complained were not done, — even if it be conceded, without deciding, that as the record originally appeared it affirmatively showed that they were not done,—the certified copy of the minutes of the proceedings show that none of the points made as to the sufficiency of the minutes are well” taken; that everything was done which the statute required to save all the rights of the defendant when called up for sentence and judgment.

He also urges an objection to the sufficiency of the information, in respect that it does not designate a human being as having been murdered by defendant, in the allegation that the defendant “ did then and there willfully, unlawfully, feloniously, and of his malice aforethought, kill and murder one James Collins ”; the argument being that “ one James Collins ” might mean a horse as well as a person or human being. It is manifest that the defendant could not have been otherwise than informed by the language used that he was accused of the murder of a human being, when he was charged with having murdered “one James Collins.” This is all that the law requires. (Pen. Code, sec. 959, subd. 6; People v. Freeland, 6 Cal. 98.) We therefore advise that the judgment and order be affirmed.

Vancliee, C., and Belcher, C., concurred.'

The Court.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.