In a recent extraordinary case, it was held by the majority of the Supreme Court, to be cruel and unusual punishment for a court of the Philippine Islands to sentence a public officer for the crime of making a false entry of payments of Government money amounting to six hundred sixteen pesos of Philippine currency to fifteen years imprisonment in chains employed at hard and painful labor in accordance with the statute of the Islands.18 The Eighth Amendment does not apply to the States of the Union 19 whether the imposition of an excessive fine or of cruel and unusual punishment is due process of law, or is forbidden by the Fourteenth Amendment is an open question.20 § 534b. Capital punishment. Treason,1 murder in the first degree, and rape 3 are punishable by the infliction of death. In the case of treason, the court may, in its discretion, instead of imposing capital punishment sentence the convict to an imprisonment of "not less than five years and fined not less than ten thousand dollars, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States."' 4 "In all cases where the accused is found guilty of the crime of murder in the first degree, or rape, the jury may qualify their verdict by adding thereto 'without capital punishment'; and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life." 5 S., § 5332, Comp. St., § 10166. See supra, § 523n. 2 Criminal Code, § 275, 35 St. at L. 1143, re-enacting U. S. R. S., §§ 5339, 5343, Comp. St., § 10448. 3 Penal Code, § 278, 35 St. at L. 1143, Comp. St., § 10450. 4 Criminal Code, § 2, 35 St. at L. 1088, re-enacting U. S. R. S., § 5332, Comp. St., § 10166, see supra, § 523n. 5 Criminal Code, § 330, 35 St. at L. 1152, Comp. St., § 10504. "Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery ; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree." 6 "The manner of inflicting the punishment of death shall be by hanging."'7 "The court before which any person is convicted of murder in the first degree, or rape, may, in its discretion, add to the judgment of death, that the body of the offender be delivered to a surgeon for dissection; and the marshal who executes such judgment shall deliver the body, after execution, to such surgeon as the court may direct; and such surgeon, or some person appointed by him, shall receive and take away the body at the time of execution."8 "Whenever a judgment of death is rendered in any court of the United States, and the case is carried to the Supreme Court in pursuance of law, the court rendering such judgment shall, by its order, postpone the execution thereof from time to time and from term to term, until the mandate of the Supreme Court in the case is received and entered upon the records of such lower court. In case of affirmance by the Supreme Court, the court rendering the original judgment shall appoint a day for the execution thereof; and in case of reversal, such further proceedings shall be had in the lower court as the Supreme Court may direct."9 Unless a statute so describes, the time and place of the execution are not a part of the judgment.10 When the day appointed for execution in the sentence expires pending proceedings to review the judgment or otherwise to set it aside, a State or 6 Criminal Code, § 273, 35 St. at L. 1143, Comp. St., § 10446. 7 Criminal Code, § 323, 35 St. at L. 1151, Comp. St., § 10497. 8 Criminal Code, § 331, 35 St. at L. 1152, Comp. St., § 10505. 9 U. S. R. S., § 1040. 10 Holden v. Minnesota, 137 U. S. 483, 34 L. ed. 734; Schwab v. Berggren, 143 U. S. 442, 36 L. ed. 218, see Cross v. Burke, 146 U. S. 82, 36 L. ed. 896. Federal court may, without violating the defendant's constitutional rights, fix a new date for execution.11 A State statute directing that the date of execution be named by the Executive is no infringement of the Federal Constitution.12 A law passed subsequent to the commission of a crime changing the place of execution is not an ex post facto law nor invalid.13 § 534c. Punishment by imprisonment. "In every case where any person convicted of an offense against the United States is sentenced to imprisonment for a period longer than one year, the court by which the sentence is passed may order the same to be executed in any State jail or penitentiary within the district or State where such court is held, the use of which jail or penitentiary is allowed by the legislature of the State for that purpose. A judgment of conviction of two of several misdemeanors, prosecuted under separate indictments, which have been consolidated for trial at which the defendant is sentenced to two successive terms in the same prison, each for less than one year but aggregating more, contains two sentences and the imprisonment cannot be directed in a penitentiary.2 3 It has been held that this act does not apply to felonies; nor to offenses which are required by other statutes to be punishable in prison by hard labor.4 offense "In every case where any criminal convicted of any against the United States is sentenced to imprisonment and confinement to hard labor, it shall be lawful for the court by which the sentence is passed to order the same to be executed in any State jail or penitentiary within the district or State where such court is held, the use of which jail or penitentiary is allowed by the legislature of the State for that purpose.' 5 "Where a judicial district has been or may hereafter be divided, the circuit and district courts of the United States shall have power to sentence any one convicted of an offense punishable by imprisonment at hard labor to the penitentiary within the State, though it be out of the judicial district in which the conviction is had."6 "All persons who have been, or who may hereafter be, convicted of crime by any court of the United States, including consular courts, whose punishment is imprisonment in a District or Territory or country where, at the time of conviction or at any time during the term of imprisonment, there may be no penitentiary or jail suitable for the confinement of convicts or available therefor, shall be confined during the term for which they have been or may be sentenced, or during the residue of said term, in some suitable jail or penitentiary in a convenient State or Territory, to be designated by the Attorney-General, and shall be transported and delivered to the warden or keeper of such jail or penitentiary by the marshal of the District or Territory where the conviction has occurred; and if the conviction be had in the District of Columbia, the transportation and the delivery shall be by the warden of the jail of that District, the reasonable actual expense of transportation, necessary subsistence, and hire and transportation of guards and the marshal, or the warden of the jail in the District of Columbia only, to be paid by the Attorney-General out of the judiciary fund. But if, in the opinion of the Attorney-General, the expense of transportation from any State, Territory, or the District of Columbia in which there is no penitentiary will exceed the cost of maintaining them in jail in the State, Territory, or the District of Columbia during the period of their sentence, then it shall be lawful so to confine them therein for the period designated in their respective sentences. And the place of imprisonment may be changed in any case when, in the opinion of the Attorney-General, it is necessary for the preservation of the health of the prisoner, or when, in his opinion, the place of confinement is not sufficient to secure the custody of the prisoner, or because of cruel or improper treatment: Provided, however, That no change shall be made in the case of any prisoner on the ground of unhealthiness of the prisoner or because of his treatment, after his conviction and during his term of imprisonment, unless such change shall be applied for by such prisoner, or some one in his behalf." "The At 6 U. S. R. S., § 5540. 7 U. S. R. S., § 5546, as amended, torney-General shall contract with the managers or proper authorities having control of such prisoners, for the imprisonment, subsistence and proper employment of them, and shall give the court having jurisdiction of such offenses notice of the jail or penitentiary where such prisoners will be confined." 8 "Whenever any person is convicted of any offense against the United States which is punishable by fine and imprisonment, or by either, the court by which the sentence is passed may order the sentence to be executed in any house of correction or house of reformation for juvenile delinquents within the State or district where such court is held, the use of which is authorized by the legislature of the State for such purpose." 9 "Juvenile offenders against the laws of the United States, being under the age of sixteen years, and who may hereafter be convicted of crime, the punishment whereof is imprisonment, shall be confined during the term of sentence in some house of refuge to be designated by the Attorney-General, and shall be transported and delivered to the warden or keeper of such house of refuge by the marshal of the district where such conviction has occurred; or if such conviction be had in the District of Columbia, then the transportation and delivery shall be by the warden of the jail of that district, and the reasonable actual expense of the transportation, necessary subsistence, and hire, and transportation of assistants and the marshal or warden, only, shall be paid by the Attorney-General, out of the judiciary fund." 10 "The Attorney-General shall contract with the managers or persons having control of such houses of refuge for the imprisonment, subsistence, and proper employment of all such juvenile offenders, and shall give the several courts of the United States and of the District of Columbia notice of the places so provided for the confinement of such offenders; and they shall be sentenced to confinement in the house of refuge nearest the place of conviction so designated by the AttorneyGeneral." 11 , 31 St. at L. 450, ch. 873; U. S. v. Lane, 221 Fed. 299. See Ozello v. U. S., C. C. A., 268 Fed. 242. 8 U. S. R. S., § 5547. 9 U. S. R. S., § 5548. 10 U. S. R. S., § 5549. |