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son said, in the case of Dous, supra, that

a sovereign Stato is doubtless bound to fight the battle of its citizen when he has a just quarrel.'

If the territory of a State has been invaded, and one of its citizens has been violently aud unlawfully removed therefrom and carried by force into another Stato, and is there held in custody, then the former State is bound to interpose for the relief of the party thus abducted from the protection of its laws; and if it shall do so then the law of comity, as understood by Chief Justice Gibson and Judge Krebs, requires the latter State to release the abducted party, even though he may be held therein under a criminal indietment, and give him the opportunity of returning to the jurisdiction from which he was thus removed. This would be the rule of comity as between independent nations in such a case; and there is no reason why it should not equally apply as between the States of this Union, especially when we remember that the Constitution and laws of the United States supply a lawful mode for the capture and delivery of persons who having committed offenses in one State, have fled to another State. It would, to the very last degree, be inexpedient for the States to countenance any method of capture, except the one provided for by law.

The general principle, so often asserted by courts, that whoro a party is actually within the jurisdiction, and there properly charged with crime, the court may proceed to try and punish him, is found guilty, without any reference to the manner of his capture, is then not absolutely and universally true, but is subject to the qualification imposed by the law of comity. If this party has been kidnapped in another State, and thus brought within the jurisdiction of the court, and if the proper authorities of that State demand his release, then according to Chief Justice Gibson and Judge Krebs, the principle does not hold true. The law of comity between States suspends the principle in such cases, and supplies another rule for the gorernment of the court. The principle, in its application, is qualified by this law.

There is another qualification of this principle, which though not always recognized by courts, rests, as wo believe, on an equally valid ground. If a party, on the charge of a specific crime, has in pursuance of the Constitution and laws of the United States, been extradited from one Stato of the Union to another, then the State demanding the fugitive criminal from another State, and on the basis of this demand and charge of a specific crime receiving such criminal from that State, is bound in good faith and honor, to limit the exercise of its jurisdiction over the party to the purpose set forth at the time of the demand, until such party shall have had a reasonable opportunity to withdraw therefrom, unless subsequently to his extradition he shall have committed an offense against tho laws of such State. This party was by the delive ering Stato arrested and surrendered to the demande ing State, and thus brought within the jurisdiction of the latter, for a specific purpose stated and defined at the :ime of the surrender, and for no other purpose; and if the demanding and receiving State', having thus obtained the possession and custody of the party, shall proceed to deal with him for some other crime than the one specified, or dotain him under a process in a civil action, it will be guilty of a breach of faith as between the States that were the parties to the extradition. The State that takes this courso after obtaining possession of the fugitive gives the lie to its own declaration; and if at the time of seeking the possession it meant to do so, thon it meant to perpetrato a fraud upon the delivering State. If the course was simply an after-thought, theu the breach of faith would not be the less real.

It is true that the Constitution does not in express words declare the exemption of the extradited party from any other cause of detention or trial than that for which he was extradited. Yet if this be fairly implied, then it is as authoritative as it would be if ex. pressly stated. We think it is implied. The party demanded and required to be delivered up must be charged with crime as a fundamental condition of the right to make the demand, and of the obligation of delivery. The charge of crime is the legal declaration of the demanding State, made beforehand, as to the specific purpose for which it demands the arrest and surrender of a person in another State, otherwise entitled to the protection of its laws. Is is the charge of a particular crime, as forgery, theft or murder, sufficiently set forth in its material facts to constitute a legal accusation. It is on the basis of the crime charged, and not of some other crime not charged, and not that of a general criminality, that the party, being domanded, is to be delivered up and removed to the State having jurisdiction of that crime. The whole provision, in both the ('onstitution and the law of Congress, relates to this crime, and this only. To obtain the delivery on this basis and for this purpose, and then proceed to use the custody gained thereby on a different basis and for a different purpose, is not to more in the line manifestly intended by the Coustitution and the law. That line is indicated by the words of the provision itself, and to depart therefrom or exceed it is to contradict its plain implication. To extradite a man on the charge of forgery, and then proceed to try him on that of theft, is not within the just and fair meaning of the constitutional provisiou. It is not within the intent of the provision. It looks far more like a violation of that intent. It is entirely different from what was professed by one State and understood by another State at the time of the demand and surrender. The fact that the party is within the jurisdiction of the demanding State, and there charged with the crime of theft, does not, in view of the circumstances which brought him there, change the case. lle was extradited for forgery, and not theft.

The Supreme Court of Michigan, in the latter of Frank ('unnon, 47 Mich. 191, held that the prisoner who had been extradited to that State from Kansas on the charge of seduction, and whom it was proposed to bold and try on that of bastardly, after the seduction charge was abandoned, could not be lawfully thus held and tried, and on this ground discharged the prisoner. The courts have not always taken this view; yet it is the better view in the light of the constitutional provision.

Judge ('ooley, who is one of the most eminent jurists of this country, speaks in regard to this point as follows:

“ To obtain the surrender of a man on one charge, and then put him on trial on another, is a gross abuse of the constitutional compact. We believe it to be a violation also of legal principles. It is a general rule that where a man is brought within the jurisdiction for one purpose, his presence shall not be taken adrantage of to subject him to legal demands and legal restraint for another purpose. The legal privileges from arrest, when one is in the performance of a legal duty away from his home, rest upon this rule, and they are merely the expressions of reasonablo exemption from unfair advantages. The reason of the rules applies to these [extradition) cases. It should be held, as it recently has been in Kentucky, that the fugitive surreudered on one charge is exempt from prosecution on any other. Ile is within the State by compulsion of law upon a single accusation. Ile has a right to have that disposed of, and then to depart in peace.” Princeton Review for January, 1879, p. 176.



The doctrine of Judge Cooley, and of the text writers on the subject of extradition, is that the possession aud custody of a party acquired thereby are to be limited in the use thereof to the purpose for which they were acquired, and that when this purpose has been gained the party is entitled to "depart in peace, 'without molestation or bindrance by other legal processes that are inconsistent with this right. This doctrine holds true whether the extradition be international or inter-State, except where it is otherwise expressly provided by treaty or by law. There is no such difference between these forms of extradition as to make the doctrive applicable to the one, but not to the other. They are essentially analogous in the fundamental principles involved.

The general rule of law which affirms that a party within the jurisdiction of a court, and there charged with crime, may be held and tried for any crime legally charged against him, or detained for any other legal purpose, is then subject to modification in at least two classes of cases.

The first class embraces the cases in which a party has been kidnapped in one State and forcibly removed into another, and in the latter State is restrained of his liberty on a criminal charge, or for other cause, and in which the chief executive authority of the State from which he was thus removed demands his release. The law of comity between States prevails in such a case, and makes his further detention unlawful.

The second class embraces the cases in which a party bas been extradited from one State to another, and in the latter State is restrained of his liberty, for a reason other than that which was the basis of his extradition. The essential principles of extradition, the law of good faith between the States of the Union, and the natural implication from the words of the Constitution of the United States, aliko declare the restraint to be unlawful; and hence the party is entitled to be discharged therefrom, and held only on the charge for which he was extradited, withouta demand for his release by the governor of the State from which he was extradited. It is not necessary for his release that such a demand should be made. The unlawfulness of the restraint is itself a sufficient reason why he should be discharged.


AMES Pearson and Theophilus Pearson carried ou

together in partnership, near Chesterfield, tbe business of potters and earthenware manufacturers. Disputes arose betwee them which resulted in litigation, and ultimately on the 27th of March, 1884, an agreement was entered into by them for the settlement of the actions and all claims therein.

The material clauses of the agreement were as follows:

1. Theophilus Pearson shall pay to 'James Pearson 2,0001. for the purchase of his estate and interest in the property and businesses to which these actions relate, 5001. to be paid on the signing thereof, and 1,5001. on completion.

2. James Pearson shall execute a conveyance or insurance of his said estate and interest to Theophilus Pear

and shall release all claims against the same, and the said Theophilus Pearson shall covenant to indemnify James Pearson against all esisting liabilities in connection with the said property and businesses; in case of dispute the conveyance or assurance to be settled by the judge.

3. Nothing in the agreement shall be deemed to restrict or prevent the said James Pearson carrying on and exercising the traile or business of a potter and earthenware manufacturer, or any other businesses, at such place as he thinks flt, and under the name of James Pearson.

4. Theophilus Pearson shall forth with discontinue carrying on business under the name of James PearBon, and intimate the same by circular to the customers within a week. All letters addressed to Janies Pearson, Chesterfield, or Whittington Moor, sball for the period of two months from the date hereof be delivered in the first instance to Theophilus Pearson,and after that time to James Pearson.

1. Each party shall forthwith consent to an order of the court staying the said actions on the above terms, except so far as it may be necessary to carry into effect or enforce such terms.

This agreement was embodied in an order of the court, which was made by the consent of the parties.

James Pearson having commenced a pottery business on his own account near Chesterfield, issued a circular to the customers of the old firm. The circular was as follows:

POTTERIES, ('HESTERFIELD, March 31, 1881. Dear Sir: I beg to inform you that I have discontinued my comection with the business carried on for many years by my late father previous to his death in 1961, and subsequently by his trustee, under the title of James Pearson, Whittington Moor Potteries, near Chesterfield. Although I am the eldest son, aud bave been engaged in the active management of the business for the past fifteen years, I have now been compelled, owing to disputes with the trustee under my father's will, to withdraw from the above-mentioned business. I have commenced business on my own account, and having every requisite appliance for the prompt execution of orders, I do not hesitate to solicit, under the above circumstances, a continuance of the fivors granted by you to the late firm, and hope that the care and attention which baro secured your support in the past may continue to be exerted on your behalf in the future. I remain,

Yours faithfully,

JAMES PEARSON. Theophilus Pearson contended that the issuing of such circular was a breach of faith, and in derogatiou of the assignment of the good will of the partnership, contained in the above mentioned agreement and order.

On the 9th of April, 1884, an application was made to the court cx parte to restrain James Pearson from




PEARSON V. PEARSOY.* Disputes having arisen between plaintiff and defendant, who

were partners in the business of potters and earthenware manufacturers, which resulted in litigation, an agreement was entered into by which defendant agreed to sell to plaintiff bis estate and interest in the property and business to which the litigation related, it being stipulate therein that nothing in said agreement should be deemed to restrict or prevent defendant from carrying on the business of a potter and earthenware manufacturer at such place as he should think fit and under the name of James

Pearson. Defendant having commenced a pottery business on his own

account, issued a circular to the customers of the old firn, in which he stated that he had discontinued his connection with that firin, but that lie solicited their cus

tom Held (reversing the decision of Kay, J ), that on the con

struction of the agreement defendant was entitled to so

licit the customers of the old firm. Labouchere v Dauson, L Rep. 13 Eq 322, orerruled.

*S. C., 51 L. T. Rep. (N. S.) 311.



dealing with the letters of the business in contraven which Jessel, M. R., again grauted an injunction in tion of clause 4 of the agreement, and from issuing similar terms, and in that case there was au appeal the above circular, and an interim injunction was from the order so far as it restrained simply dealing granted upon the usual undertaking as to damages with the old customers, but no appeal as to the injuncbeing given by Theophilus Pearson.

tion restraining the soliciting—that is, the principle of Muy 1, 1884.-A motion was now made to continue Labouchere v. Dau'son was submitted to by the dethat injunction, which was granted, “ restraining said fendant in that case. All the judges on the appeal were James Pearson from issuing any circulars,

of opinion that the injunction should not be extended : and also from applying to any person who was a cus but it was not possible for the court on that occasion tomer or correspondent of the late firm, prior to the to decide the exact point in Labouchere v. Dawson, date of this agreement, privately, by letter, personally though James and Cotton, L. JJ., both expressed or by a traveller, asking such customer or correspond. doubts as to the soundness of that decision. Thirdly, ent to continue to have dealings with the defendant, the case was discussed in Walker v. Mottram, ubi supra, or not to deal with the plaintiff.”

a case in which Jessel, M. R., had again extended the James Pearson appealed from so much of the order principle to circumstances to which the Court of Apas restrained him from soliciting business from the peal thought it ought not to be extended. In that case customers of the old firm.

Lush and Lindley, L. JJ., did not dissent from Labou

chere v. Dawson. Indeed a passage in their judgment Graham Hasting, Q. C., and William Baker, for ap.

seems rather to assent to it. At the same time it is pellant.

impossible to read the decisions on good will prior to Robinson, Q. C., and Mulligan, for respondent.

1872 without seeing that that

went much BAGGALLAY, L. J. The order granting this injunc

farther than the old ones. In my opinion the authorition must be discharged. The injunction restrains the

ties of Cook v. Collingridye, Jac. 607; Churton v.Dougdefendant from issuing circulars to the customers of

las, ubi supru, and Crutwell v. Lye, 17 Ves. 335, do not the old firm, and also restrains him from soliciting tho

warrant the extension. As I have already said, my customers of the late firm to deal with him. The de

doubts as to Labouchere v. Dawson are now coufirmed, fendant does not appeal as to the first part of the in

and I must express my opinion that that case is not junction, but only as to the second part, which re

correct,but goes beyond the older decision withoutgood strains him from soliciting the customers of the old

Then it was pressed upon us that because Lafirm. It ls important to bear in mind the terms of the

bouchere v. Dauson is a case twelve years old, the agreement. If clause 1 stood alone, I should be of Court of Appeal ought to act upon it, and leave it to be opinion that the words "estate and interest "included

overruled, if it is overruled, by the House of Lords; good will, and the case would be within the principle

and in support of that Pugh v. Golden Valley Ry. Co., of Lubcuchere v. Dawson, 25 L. T. Rep. (N. S.) 891; L.

42 L. T. Rep. (N. S.) 863; 15 Ch. Div. 330, was cited, R., 13 Eq. 3:22; and if that case is to be recognized as

where no doubt Thesiger, L. J., did express an opinion good law, the plaintiff would be entitled (leaving clause

that it was undesirable to overrule old-standing decis3 of the agreement out of consideration for the mo ious upon which many private acts of Parliament had

been based in the meantime. At the same time it ment) to an injunction. But with respect to that caso I have myself on a former occasion, in Walker v. dol

may be remarked that the judges did not act only tram, 45 L. T. Rep. (N. S.) 659; 19 (h. Div. 355, ex

upon that view, for they expressly approved Reg. pressed doubts which the argument to-day has certainly

v. Wycombe Ry. Co., 15 L. T. Rep. (N. S) 310; L. R.,

2 Q. B. 310, the case which it was then sought to tended to confirm, so that I may now say that in my

overrule. Therefore if this case was to be determined opinion, Labouchere v. Duison ought not to be recognized by the courts. I am well aware that it has been

upon the first clause only of the agreement, I not being followed on two or three occasions by judges of co-or

able to adopt the decision in Labouchere v. Dawson, dinate jurisdiction, but it has never yet been distinctly

should bold that there was no ground for restraining followed or positively dissented from in the Court of

the defendant as to that part of the injunction as to Appeal. In that case there was an agreement for sale

whicb he has appealed. But clause 3 appears to con

fer on the defendant the right to carry on the same of a brewery with the good will of the business, aud Lord Romilly decided that the vendor might set up a

business, and certainly must modify any view which similar business and publicly advertise, but might not

might be taken of the rights of the parties if they were solicit the customers of the old firm. The principle of

to be decided upon a simple agreement for sale of the the decision was that vendors must not afterward de

business. Having regard to clause 3, the defeudant preciate what they have sold. But the question in the

has certainly not done any thing which he is not entifirst instance is, what is it that they have really sold ?

tled to do. I prefer however to rest my decision on Tbe law prior to that case was rery distinctly enun

clause 1, and to give it the full effect contended for by ciated by Lord Ilatherly, when vice-chancellor, in

the appellant. Churton v. Dougluss, Johng. 174, to the effect that a

(COTTON, L. J. This case is founded upon a contract man who has sold the good will of his business is not

between the plaintiff and defendant. There is no exthereby prevented from carrying on business with the

press covenant that the defendant will not solicit the customers of the old firin, provided that he does not

customers of the old firm; but it is said that there is represent that his is the old business, or that he is the

an implied one. Now I have a great objection to exsuccessor in business of the old firm. Lubouchere y.

tending contracts, and I think it is much better when Dawson therefore went beyond this and all the older

parties are entering into contracts to require them decisions.

to say what they really mean. This very question Similar questions have arisen in three more recout

must have been present to the minds of the parties in In Ginesi v. Cooper, 42 L. T. Rep. (N. S.) 751;

the present case, and yet the agreement is silent upon 14 ('h. Div. 596, a trader sold his business and good

it. That, to my mind, is a strong argument that it will, and Jessel, M. R., restrained the vendor, not only

was not intended to restrict the defeudant lu this from soliciting, but even from dealing with the custom

way. As to good will we may take what was said by

Lord Eldon in ('ruttuell v. Lye, 17 Ves. 335, 346: “The ers of the old firm, a decision which went even further than Lubouchere v. Dawson. That was not appealed; good will which has been the subject of sale is nothing but in a very few weeks came the case of Legyott v.

more than the probability that the old customers will Barrelt, 43 L. T. Rep. (N. S.) 611; 15 Ch. Dir. 306, in resort to the old place.” Having the old place of busi


In my




in my

ness, of course gives a very good chance of retaining ant. Does it not niean that though he has sold the tbe old customers. I think the terms of clause 1 in good will, he is to be just as free to carry on a similar this agreement carry the good will in the sense of Lord business as if he had not sold any thing? As to LaEldon, and though it may be that in some cases a con bouchere v. Dawson, there has been no doubt a differtract for sale of good will means something more than euce among the judges of the Appeal Court. I am not the chance of the customers resorting to the old place, prepared to say it is wrong. On the contrary, I think yet as a rule there is in my opinion no substantial dif. it is right. I always have thought so. I think the ference between the sale of a business and the sale of principle of it is right—that a person who has sold the the good will of a business. It has been argued that it good will of a business shall not derogate from bis is already decided by Labouchere v. Dawson that upon own grant. If the ('ourt of Chancery bad originally the sale of the good will of a business, there is an in decided to go that length, no one would have quarplied covenant by the vendor not to solicit the cus relled with it, and I think Lord Romilly went in the tomers of the old firm. We ought not to hesitate to right direction. Lush, L. J., Jessel, M. R., and Brett, say whether, in our opinion, that case was rightly de M. R., have all approved of it. I believe it has been oided. In the other cases which were brought to the acted on in agreements for sales erer since, and I am Court of Appeal, and to which Baggallay, L. J., has re not prepared to overrule it. In construing the agreeferred, the exact point did not arise. Here it ment in this case however I do not think Labouchere does arise.

opinion that decision v. Dauson applies, and I agree in discharging so much wrong.

So far from there being any thing of the order as bas been appealed from. in the earlier cases in support of such

Appeal allowed; so much of the order as restrained tension of the meaning of good will, it seems to me soliciting old customers being discharged. that what was said in those cases was contrary to it. Solicitors: Smiles, Binyon and Ollard; Burn and [His lordship then referred to the judgments of Lord Berridge, agents for Silvester E. Swuffield, ChesterEldon in Cruttwell v. Lye, ubi supra; Kennedy v. Lee, field. 3 Mer. 452, and Cook v. Collingridge, ubi supru.] That is, in Lord Eldon's opinion,n selling partner may carry CONSTITUTIONAL LAIP EL POST FACTO -with him the old customers by all fair means. It

CHANGING PU'VISILILE.VT - REASOVABLE would be fraudulent of course to represent this new

DOCBT-PRISOVER AS WITNESS. business as the old one. Here what has been restrained is the merely asking people to deal with the defendant. The question is, where is the line to be drawn? The

SUPREME COURT OF NEBRASKA, AUG. 8, 1881. defendant, it seems, is to be at liberty to carry on business next door, but he is not to write and tell the cus.

MARION V. STATE.* tomers that he is doing so. It would be wrong,

At the time of the commencement of the alleged offense the opinion, to put upon a sale of good will a meaning punishment prescribed for the crime of murder was either whicb would imply a covenant not to solicit. And if death or imprisoninent for life, the penalty to be fixed by the vendor may solicit by private letter, why not by the jury in their verdict. After the commission of the circular? Although I think it right to express my offense the law was changed so as to make death the pundissent from Labouchere v. Dawson, the defendant's ishment for murder in the first degree, and divesting the right is certainly much clearer in this case, the inten jury of the authority to fix the penalty. Ilcld, that so far tion of the parties being shown by the third clause of as the law affected the rights of the party charged with the agreement. It was urged upon us that Lubouchere the offense by depriving him of the right to the verdict of v. Dawson was a case of some age, and ouglit not now the jury upon the question of punishment, it was ex post to be overruled by the Court of Appeal. For eight

facto, and void. years there was no opportunity of questioning it in The propriety of instructing a jury that in cases of circumthe Court of Appeal, and of course in the courts of co stantial evidence it is not necessary for the jury to be satordinate jurisdiction it would not have been right to isfied beyond a reasonable clouht of " each link in the disregard it. But in Leggott s. Burrell, ubi supru, in

chain of circumstances relied on to establish defendant's 1880, James, L. J., and I were careful to leave the point gnilt' doubted. open in case it should afterward arise in the ('ourt of When in a prosecution for muriler the defendant, on his trial, Appeal. We both expressed our doubts then as to the

becomes a witness in his own behalf, it is incompetent on soundness of the decision, and this is the first time I cross-examination, for the purpose of affecting his credibave had an opportunity of really expressing my opin

bility as a witness, to ask him if he had not pleaded guilty ion on the point. In my opinion parties ought to put

to a penitentiary offense in another State; the entering of their bargains, whatever they may be, in plain lan

a plea of guilty, without judgment or sentence, not being guage.

a conviction within the meaning of section 338 of the Civil LINDLEY, L. J. The rights of the parties in this case

Code of Nebraska. depend on the construction of the agreement. It is RROR from Gage county. uot an agreemeut between an ordinary vendor and purcbaser of a business, or between a continuing and a retiring partner, but it is an agreement the object of

Colby, Iluzlett & Bates, for plaintiff. which was to put an end to the disputes, which are re The Atlorney-General, for defendant. ferred to in the recitals. By the first clause Theophilus Pearson, the plaintiff, agreed to pay to his nephew

REESE, J. On the 20th day of April, 1883, the plain

tiff in error was indicted by the grand jury of Gage 2.0001. for his interest and estate in tbe property and business. To understand that, we must realize the

county for the muriler of John ('ameron on the 15th

day of May, 1872.. The trial on the indictment resulted position of the parties. The purchaser, was it trustee,

in a verdict of guilty of murder in the first degree, and and the vendor was his cestui que trust, who was give the sentence of death was pronounced upon the plaining up his whole interest under bis father's will, what

tiff in error by the court. From this sentence and ever it nright be, for 2,0001. I do not doubt that.“good judgment he prosecutes il writ of error to this court. will ” was included in what was sold, for I do not see

At the very threshold of this case we encounter a how any one can sell his share of a business without including his share in the good will. But clause 3 of

fatal error in the proceedings, and one which appears

to bare escaped the attention of all the counsel euthe agreement is a very important clause. It is introduced forthe benefit of James Peurson, the defend

*S. C., 20 N W Rep. 289.



gaged in the trial of the cause, but which must not be post factu, and unless some provision was made for overlooked by this court. "No act wbich a court can cases of this kind no punishment could be inflicted for be called on to perform is more grave and solemn than such acts. to render a capital judgment. To perform such a duty In Calder v. Bull, 3 Dall. 386, the Supreme Conrt of a judge is reconciled only by the consideration that it the United States have decided that the plain and obis not he who does it, but the law, of which he is sim: vious meaning and intention of this prohibition in the ply the minister. But if the law invests him in the Constitution is that the Legislatures of the particular case with no such power, he may well delib- several States shall not


laws after orate, and must refuse to exercise it." United States fact done by a citizen or subject, which shall v. Yellow Sun, 1 Dill. 273. At the time of the alleged have relation to such fact; and in writing the opinion commission of the crime the law of Nebraska upon the of the court in that case ("hase, J., says: “I will state subject of murder was quite different from what it is what laws I consider ex post fucto laws within the now and was at the time of the indictmentand trial of words and the intent of the prohibition: (1) plaintiff in error, and by that law he must be tried. Every law that makes an action done before the passBy section eighteen of the Criminal Code, which was ing of the law, aud which was innocent when done, in force at the time of the alleged killing, murder is criminal, and punishes such action; (2) every law that declared to be “the unlawful killing of a human being aggravates a crime, or makes it greater than it was with malice aforethought, either express or implied.” whon committed; (3) every law that changes the punBy that law there are no degrees of murder; the ishment and inflicts a greater punishment than the law killing, if felonious, being either murder or man annexed to the crime when committed; (4) every law slaughter. By the law under which the plaintiff in er that alters the legal rules of evidence, and receives less ror was tried, murder is divided into two degrees, or different testimony than the law required at the murder in the first degree and murder in the second time of the commission of the offense in order to condegree. By section 3 of the Criminal Code of 1873 vict the offender. All these and similar laws are manimurder in the first degree is in substance (as applicable festly unjust and oppressive.”' to cases of this kind) the killing of another purposely This construction of the constitutional provision unand of deliberate and premeditated malice; and mur der consideration has been accepted and followed by der in the second degree may be said to consist in kill the courts ever since the decision was made, and is ing another purposely and maliciously, but without now the settled law of the land; and hence it would deliberation and premeditation. Manslaughter may, seem that little need be said by way of applying the for the purposes of this case, be treated as the same principles there laid down to this case. It is very eviunder both ('odes, although somewbat different. dent that the law under which the plaintiff in error

In accordance with the requirements of the law un was tried “inflicts a greater punishment than the law der which the defendant was tried, the court give to annexed to the crime when committed.” By that law the jury this instruction: " (12) If you find the defend the punishment was either death or imprisonment. By ant guilty of the murder charged, then it will be your the latter enactment it is death. By that law the duty to also return in your verdict whether he is party charged had the right to have the jury pass upon guilty of murder in the first degree-that is, purposely the question as to whether he should live or die. By and of deliberate and premeditated malice; or whether the latter act, if found guilty, he is deprived of his life, he is guilty of murder in the second degree-that is, and the jury by whom he is tried have nothing to say purposely and maliciously, but without deliberation upon the subject of what his punishment shall be. and premeditation; or whether he is guilty of man This right being at the time of the alleged act his, he slaughter—that is, that he unlawfully killed tho de camot be deprived of it by a law subsequently passed. ceased without malice."

lu kring v. Stude, 107 U.S. 221, the Supreme Court This, as we have seen, was an incorrect definition of of the United States have recently held that (quoting the crime. But it was not only an incorrect definition from the syllabus) “any law is an ex post facto law of the crime of murder, but it withheld from the jury within the meaning of the Constitution passed after the duty of fixing the punishment or penalty to bo in the commission of a crime charged against the defendflicted upon the plaintiff in error.

ant, wbich in relation to that ofïense or its conseBy section 1 of an act approved February 15, 1869, quences, alters the situation of the party to his disadwhich was amendatory of section 20 of the Criminal vantago; and no one can be criminally punished in Code, page 595 of the Revised Statutes, it was provided this country except according to the law prescribed for that the punishment of any person or persons con his government by the sovereign authority before the victed of the crime of murder shall be death or im- imputed offense was committed, and which existed as prisonment in the penitentiary for life, and the jury a law at the time.' trying the case shall fix the penalty.

In that case at the time of the commission of the In this case the plaintiff in error was deprived of a murder for which Kring was indicted, the Supreme right guaranteed to him, not only by the Constitution (ourt of Missouri had declared the law to be that and laws of this State, but by the Constitution of the when a conviction was had of murder in the second United States. It is one of the fundamental princi. degree, on an indietment charging murder in the first ples of this government that no person shall be punë degreo, if the conviction was set aside the defendant ished for :10 act which was not criminal at the time could not again be cried for murder in the first degree. the act was committed, nor for an act which is made After the commission of the crime the Constitution of criminal in any other or greater degree, or the punish- the State was so amended as to abrogate this rule, and meut of which is materially changed after the commis allow a defendant to be again put upon his trial for sion of the act. And so carefully have the rights of the highest crime charged in the indictment. After the citizen been guarded in this respect, it has been in the change in the ('onstitution, Kring, having been corporated in the organio law of the nation, and by sec put on his trial for murder, mado al agreement with tion 10 of article 1 of the ('onstitution of the United the prosecuting attorney by which he was to plead States the States aro prohibited from passing any er guilty of murder in the second degree and receive a post facto law. It cannot bo doubted but that the law sentence of ten years' imprisonment in the penitenrelating to the crime of murder, which became the law tiary of the State. lle entered his pleu of guilty of of this State on the 1st day of Septembor, 1873, was so murder in the second degree, but the court refused to far as it related to acts done before it took effect, exc be bound by the agrooment of the prosecuting attor

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