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son said, in the case of Dows, supra, that "a sovereign State 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 State, 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 indictment, 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 Coustitution 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 where a party is actually within the jurisdiction, and there properly charged with crime, the court may proceed to try and punish him, if 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 government 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 we 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 State 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 the laws of such State. This party was by the delivering State arrested and surrendered to the demanding State, and thus brought within the jurisdiction of the latter, for a specific purpose stated and defined at the time 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 detain 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 course 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, then it meant to perpetrate a fraud upon the delivering State. If the course was simply an after-thought, then 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 expressly stated. We think it is implied. The party demauded 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. It 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 demanded, is to be delivered up and removed to the State having jurisdiction of that crime. The whole provision, in both the Constitution and the law of Congress, relates to this crime, and this ouly. 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 move in the line manifestly intended by the Constitution 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 provision. 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 oue 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. He was extradited for forgery, and not theft.

The Supreme Court of Michigan, in the Matter of Frank Cannon, 47 Mich. 481, held that the prisoner who had been extradited to that State from Kansas on the charge of seduction, and whom it was proposed to hold and try on that of bastardy, after the seduction charge was abaudoned, 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 Cooley, 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 advautage of to subject him to legal demands aud 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 reasonable exemption from unfair advantages. The reason of the rule applies to these [extradition] cases. It should be held, as it recently has been in Kentucky, that the fugitive surren dered on one charge is exempt from prosecution on any other. He is within the State by compulsion of law upon a single accusation. He 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 and 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 doctrine 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 has been extradited from one State to another, aud iu 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, alike 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. SAMUEL T. SPEAR.

PARTNERSHIP-SALE OF GOOD WILL-SOLICITING CUSTOMERS OF OLD FIRMINJUNCTION.

ENGLISH COURT OF APPEAL, NOV. 8, 1884.

PEARSON V. PEARSON.*

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 his estate and interest in the property and business to which the litigation related, it being stipulated 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 firm, in which he stated that he had discontinued his connection with that firm, but that he solicited their cus

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Held (reversing the decision of Kay, J.), that on the construction of the agreement defendant was entitled to solicit the customers of the old firm.

Labouchere v Dawson, L Rep. 13 Eq 322, overruled.

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

JAMI

AMES Pearson and Theophilus Pearson carried ou together in partnership,near Chesterfield, the 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 2,000/. for the purchase of his estate and interest in the property and businesses to which these actions relate, 500l. to be paid on the signing thereof, and 1,500l. on completion.

2. James Pearson shall execute a conveyance or insurance of his said estate and interest to Theophilus Pearson, and shall release all claims against the same, aud the said Theophilus Pearson shall covenant to indemnify James Pearson against all existing 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 trade or business of a potter and earthenware manufacturer, or any other businesses, at such place as he thinks fit, and under the name of James Pearson.

4. Theophilus Pearson shall forthwith discontinue carrying on business under the name of James Pearson, and intimate the same by circular to the customers within a week. All letters addressed to James Pearson, Chesterfield, or Whittington Moor, shall 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.

7. Each party shall forthwith cousent 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, CHESTERFIELD, March 31, 1884. Dear Sir: I beg to inform you that I have discontinued my connection with the business carried on for many years by my late father previous to his death in 1864, and subsequently by his trustee, under the title of James Pearson, Whittington Moor Potteries, near Chesterfield. Although I am the eldest son, aud have 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 80licit, under the above circumstances, a continuance of the favors granted by you to the late firm, and hope that the care and attention which have 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 derogation 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 ex parte to restrain James Pearson from

dealing with the letters of the business in contravention of clause 4 of the agreement, aud from issuing the above circular, and an interim injunction was granted upon the usual undertaking as to damages being given by Theophilus Pearson.

May 1, 1884.-A motion was now made to continue that injunction, which was granted, "restraining said James Pearson from issuing any circulars, * * ** and also from applying to any person who was a customer or correspondent of the late firm, prior to the date of this agreement, privately, by letter, personally or by a traveller, asking such customer or correspond. ent to continue to have dealings with the defendant, or not to deal with the plaintiff."

James Pearson appealed from so much of the order as restrained him from soliciting business from the customers of the old firm.

Graham Hasting, Q. C., and William Baker, for ap pellant.

Robinson, Q. C., and Mulligan, for respondent.

BAGGALLAY, L. J. The order granting this injunc tion must be discharged. The injunction restrains the defendant from issuing circulars to the customers of the old firm, and also restrains him from soliciting the customers of the late firm to deal with him. The defendant does not appeal as to the first part of the injunction, but only as to the second part, which restrains him from soliciting the customers of the old firm. It is important to bear in mind the terms of the agreement. If clause 1 stood alone, I should be of opinion that the words " estate and interest" included good will, and the case would be within the principle of Labouchere v. Dawson, 25 L. T. Rep. (N. S.) 894; L. R., 13 Eq. 322; and if that case is to be recognized as good law, the plaintiff would be entitled (leaving clause 3 of the agreement out of consideration for the moment) to an injunction. But with respect to that case I have myself on a former occasion, in Walker v. Mottram, 45 L. T. Rep. (N. S.) 659; 19 Ch. Div. 355, expressed doubts which the argument to-day has certainly tended to confirm, so that I may now say that in my opinion, Labouchere v. Dawson ought not to be recognized by the courts. I am well aware that it has been followed on two or three occasions by judges of co-ordinate jurisdiction, but it has never yet been distinctly followed or positively dissented from in the Court of Appeal. In that case there was an agreement for sale of a brewery with the good will of the business, and Lord Romilly decided that the vendor might set up a similar business and publicly advertise, but might not solicit the customers of the old firm. The principle of the decision was that vendors must not afterward depreciate what they have sold. But the question in the first instance is, what is it that they have really sold? The law prior to that case was very distinctly enunciated by Lord Hatherly, when vice-chancellor, in Churton v. Douglass, Johns. 174, to the effect that a man who has sold the good will of his business is not thereby prevented from carrying on business with the customers of the old firm, provided that he does not represent that his is the old business, or that he is the. successor in business of the old firm. Labouchere v. Dawson therefore went beyond this and all the older decisions.

Similar questions have arisen in three more recent cases. In Ginesi v. Cooper, 42 L. T. Rep. (N. S.) 751; 14 Ch. Div. 596, a trader sold his business and good will, and Jessel, M. R., restrained the vendor, not only from soliciting, but even from dealing with the customers of the old firm, a decision which went even further than Labouchere v. Dawson. That was not appealed; but in a very few weeks came the case of Leggott v. Barrett, 43 L. T. Rep. (N. S.) 641; 15 Ch. Div. 306, in

which Jessel, M. R., again granted an injunction in similar terms, and in that case there was au appeal from the order so far as it restrained simply dealing with the old customers, but no appeal as to the injunc tion restraining the soliciting-that is, the principle of Labouchere v. Dawson was submitted to by the defendant in that case. All the judges on the appeal were of opinion that the injunction should not be extended; but it was not possible for the court on that occasion to decide the exact point in Labouchere v. Dawson, though James and Cotton, L. JJ., both expressed doubts as to the soundness of that decision. Thirdly, the case was discussed in Walker v. Mottram, ubi supra, a case in which Jessel, M. R., had again extended the principle to circumstances to which the Court of Appeal thought it ought not to be extended. In that case Lush and Lindley, L. JJ., did not dissent from Labouchere v. Dawson. Indeed a passage in their judgment seems rather to assent to it. At the same time it is impossible to read the decisions on good will prior to 1872 without seeing that that саве went much farther than the old ones. In my opinion the authorities of Cook v. Collingridge, Jac. 607; Churton v.Douglas, ubi supra, aud Crutwell v. Lye, 17 Ves. 335, do not warrant the extension. As I have already said, my doubts as to Labouchere v. Dawson are now confirmed, and I must express my opinion that that case is not correct, but goes beyond the older decision without good Then it was pressed upon us that because Labouchere v. Dawson is a case twelve years old, the Court of Appeal ought to act upon it, and leave it to be overruled, if it is overruled, by the House of Lords; and in support of that Pugh v. Golden Valley Ry. Co., 42 L. T. Rep. (N. S.) 863; 15 Ch. Div. 330, was cited, where no doubt Thesiger, L. J., did express an opinion that it was undesirable to overrule old-standing decisions upon which many private acts of Parliament had been based in the meantime. At the same time it may be remarked that the judges did not act only upon that view, for they expressly approved Reg. 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 overrule. Therefore if this case was to be determined upon the first clause only of the agreement, I not being able to adopt the decision in Labouchere v. Dawson, should hold that there was no ground for restraining the defendant as to that part of the injunction as to which he has appealed. But clause appears to confer on the defendant the right to carry on the same business, and certainly must modify any view which might be taken of the rights of the parties if they were to be decided upon a simple agreement for sale of the business. Having regard to clause 3, the defeudaut has certainly not done any thing which he is not entitled to do. I prefer however to rest my decision on clause 1, and to give it the full effect contended for by the appellant.

reason.

COTTON, L. J. This case is founded upon a contract between the plaintiff and defendant. There is no express covenant that the defendant will not solicit the customers of the old firm; but it is said that there is an implied one. Now I have a great objection to extending contracts, and I think it is much better when parties are entering into contracts to require them to say what they really mean. This very question must have been present to the minds of the parties in the present case, and yet the agreement is silent upon it. That, to my mind, is a strong argument that it was not intended to restrict the defeudant ln this way. As to good will we may take what was said by Lord Eldon in Cruttwell v. Lye, 17 Ves. 335, 346: "The good will which has been the subject of sale is nothing more thau the probability that the old customers will resort to the old place." Having the old place of busi

ness, of course gives a very good chance of retaining the old customers. I think the terms of clause 1 in this agreement carry the good will in the sense of Lord Eldon, and though it may be that in some cases a contract for sale of good will means something more than the chance of the customers resorting to the old place, yet as a rule there is in my opinion no substantial difference between the sale of a business and the sale of the good will of a business. It has been argued that it is already decided by Labouchere v. Dawson that upon the sale of the good will of a business, there is an implied covenant by the vendor not to solicit the customers of the old firm. We ought not to hesitate to say whether, in our opinion, that case was rightly deoided. In the other cases which were brought to the Court of Appeal, and to which Baggallay, L. J., has referred, the exact point did not arise. Here it does arise. In my opinion that decision was wrong. So far from there being any thing in the earlier cases in support of such an extension of the meaning of good will, it seems to me that what was said in those cases was contrary to it. [His lordship then referred to the judgments of Lord Eldon in Cruttwell v. Lye, ubi supra; Kennedy v. Lee, 3 Mer. 452, and Cook v. Collingridge, ubi supra.] That is, in Lord Eldon's opinion, a selling partner may carry with him the old customers by all fair meaus. It would be fraudulent of course to represent this new 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 defendant, it seems, is to be at liberty to carry on business next door, but he is not to write and tell the cus. tomers that he is doing so. It would be wrong, in my opinion, to put upon a sale of good will a meaning which would imply a covenant not to solicit. And if the vendor may solicit by private letter, why not by circular? Although I think it right to express my dissent from Labouchere v. Dawson, the defendant's right is certainly much clearer in this case, the intention of the parties being shown by the third clause of the agreement. It was urged upon us that Labouchere v. Dawson was a case of some age, and ought not now to be overruled by the Court of Appeal. For eight years there was no opportunity of questioning it in the Court of Appeal, and of course in the courts of coordinate jurisdiction it would not have been right to disregard it. But in Leggott v. Barrett, ubi supra, in 1880, James, L. J., and I were careful to leave the point open in case it should afterward arise in the Court of Appeal. We both expressed our doubts then as to the soundness of the decision, and this is the first time I have had an opportunity of really expressing my opinion on the point. In my opinion parties ought to put their bargains, whatever they may be, in plain language.

LINDLEY, L. J. The rights of the parties in this case depend on the construction of the agreement. It is uot an agreement between an ordinary vendor and purchaser of a business, or between a continuing and a retiring partner, but it is an agreement the object of which was to put an end to the disputes, which are referred to in the recitals. By the first clause Theophilus Pearson, the plaintiff, agreed to pay to his nephew 2,000l. for his interest and estate in the property and business. To understand that, we must realize the position of the parties. The purchaser was a trustee, and the vendor was his cestui que trust, who was giving up his whole interest under his father's will, whatever it might be, for 2,000l. I do not doubt that "good will "" was included in what was sold, for I do not see how any one can sell his share of a business without including his share in the good will. But clause 3 of the agreement is a very important clause. It is introduced for the benefit of James Pearson, the defend

ant. Does it not mean that though he has sold the good will, he is to be just as free to carry on a similar business as if he had not sold any thing? As to Labouchere v. Dawson, there has been no doubt a difference among the judges of the Appeal Court. I am not prepared to say it is wrong. On the contrary, I think it is right. I always have thought so. I think the principle of it is right-that a person who has sold the good will of a business shall not derogate from his own grant. If the Court of Chancery had originally decided to go that length, no one would have quarrelled with it, and I think Lord Romilly went in the right direction. Lush, L. J., Jessel, M. R., and Brett, M. R., have all approved of it. I believe it has been acted on in agreements for sales ever since, and I am not prepared to overrule it. In construing the agree-ment in this case however I do not think Labouchere v. Dawson applies, and I agree in discharging so much of the order as has been appealed from.

Appeal allowed; so much of the order as restrained soliciting old customers being discharged.

Solicitors: Smiles, Binyon and Ollard; Burn and Berridge, agents for Silvester E. Swaffield, Chesterfield.

CONSTITUTIONAL LAW-EX POST FACTOCHANGING PUNISHMENT - REASONABLE DOUBT-PRISONER AS WITNESS.

SUPREME COURT OF NEBRASKA, AUG. 8, 1884.

MARION V. STATE.*

At the time of the commencement of the alleged offense the punishment prescribed for the crime of murder was either death or imprisonment for life, the penalty to be fixed by the jury in their verdict. After the commission of the offense the law was changed so as to make death the punishment for murder in the first degree, and divesting the jury of the authority to fix the penalty. Held, that so far as the law affected the rights of the party charged with the offense by depriving him of the right to the verdict of the jury upon the question of punishment, it was ex post facto, and void.

The propriety of instructing a jury that in cases of circum

stantial evidence it is not necessary for the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied on to establish defendant's gnilt" doubted.

When in a prosecution for murder the defendant, on his trial, becomes a witness in his own behalf, it is incompetent on cross-examination, for the purpose of affecting his credibility as a witness, to ask him if he had not pleaded guilty to a penitentiary offense in another State; the entering of a plea of guilty, without judgment or sentence, not being a conviction within the meaning of section 338 of the Civil Code of Nebraska.

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Colby, Hazlett & Bates, for plaintiff.

The Attorney-General, for defendant.

REESE, J. On the 20th day of April, 1883, the plaintiff in error was indicted by the grand jury of Gage county for the murder of John Cameron on the 15th day of May, 1872. The trial on the indictment resulted in a verdict of guilty of murder in the first degree, and the sentence of death was pronounced upon the plaintiff in error by the court. From this sentence and judgment he prosecutes a writ of error to this court. At the very threshold of this case we encounter a fatal error in the proceedings, and one which appears to have escaped the attention of all the counsel eu

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

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gaged in the trial of the cause, but which must not be overlooked by this court. 'No act which a court can be called on to perform ls more grave and solemn than to render a capital judgment. To perform such a duty a judge is reconciled only by the consideration that it is not he who does it, but the law, of which he is sim. ply the minister. But if the law invests him in the particular case with no such power, he may well deliberate, and must refuse to exercise it." United States v. Yellow Sun, 1 Dill. 273. At the time of the alleged commission of the crime the law of Nebraska upon the subject of murder was quite different from what it is now and was at the time of the indictment and trial of plaintiff in error, and by that law he must be tried. By section eighteen of the Criminal Code, which was in force at the time of the alleged killing, murder is declared to be "the unlawful killing of a human being with malice aforethought, either express or implied." By that law there are no degrees " of murder; the killing, if felonious, being either murder or manslaughter. By the law under which the plaintiff in error was tried, murder is divided into two degreesmurder in the first degree and murder in the second degree. By section 3 of the Criminal Code of 1873 murder in the first degree is in substance (as applicable to cases of this kind) the killing of another purposely and of deliberate and premeditated malice; and murder in the second degree may be said to consist in killing another purposely and maliciously, but without deliberation and premeditation. Manslaughter may, for the purposes of this case, be treated as the same under both Codes, although somewhat different.

In accordance with the requirements of the law under which the defendant was tried, the court gave to the jury this instruction: "(12) If you find the defendant guilty of the murder charged, then it will be your duty to also return in your verdict whether he is guilty of murder in the first degree-that is, purposely and of deliberate and premeditated malice; or whether he is guilty of murder in the second degree-that is, purposely and maliciously, but without deliberation and premeditation; or whether he is guilty of manslaughter-that is, that he unlawfully killed the deceased without malice."

This, as we have seen, was an incorrect definition of the crime. But it was not only an incorrect definition of the crime of murder, but it withheld from the jury the duty of fixing the punishment or penalty to be inflicted upon the plaintiff in error.

By section 1 of an act approved February 15, 1869, which was amendatory of section 20 of the Criminal Code, page 595 of the Revised Statutes, it was provided that the punishment of any person or persons convicted of the crime of murder shall be death or imprisonment in the penitentiary for life, and the jury trying the case shall fix the penalty.

In this case the plaintiff in error was deprived of a right guaranteed to him, not only by the Constitution and laws of this State, but by the Constitution of the United States. It is one of the fundamental princi. ples of this government that no person shall be punished for an act which was not criminal at the time the act was committed, nor for an act which is made criminal in any other or greater degree, or the punishmeut of which is materially changed after the commission of the act. And so carefully have the rights of the citizen been guarded in this respect, it has been incorporated in the organic law of the nation, and by sec tion 10 of article 1 of the Constitution of the United States the States are prohibited from passing any ex post facto law. It cannot be doubted but that the law relating to the crime of murder, which became the law of this State on the 1st day of September, 1873, was so far as it related to acts done before it took effect, ex

post facto, and unless some provision was made for cases of this kind no punishment could be inflicted for such acts.

In Calder v. Bull, 3 Dall. 386, the Supreme Conrt of the United States have decided that the plain and obvious meaning and intention of this prohibition in the Constitution is that the Legislatures of the several States shall not pass laws after 8 fact done by a citizen or subject, which shall have relation to such fact; and in writing the opinion of the court in that case Chase, J., says: "I will state what laws I consider ex post facto laws within the words and the intent of the prohibition: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender. All these and similar laws are manifestly unjust and oppressive."

.

This construction of the constitutional provision under consideration has been accepted and followed by the courts ever since the decision was made, and is now the settled law of the land; and hence it would seem that little need be said by way of applying the principles there laid down to this case. It is very evideut that the law under which the plaintiff in error was tried "inflicts a greater punishment than the law annexed to the crime when committed." By that law the punishment was either death or imprisonment. By the latter enactment it is death. By that law the party charged had the right to have the jury pass upon the question as to whether he should live or die. By the latter act, if found guilty, he is deprived of his life, and the jury by whom he is tried have nothing to say upon the subject of what his punishment shall be. This right being at the time of the alleged act his, he cannot be deprived of it by a law subsequently passed.

In Kring v. State, 107 U. S. 221, the Supreme Court of the United States have recently held that (quoting from the syllabus) "any law is an ex post facto law within the meaning of the Constitution passed after the commission of a crime charged against the defendant, which in relation to that offense or its consequences, alters the situation of the party to his disadvantage; and no one can be criminally punished in this country except according to the law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time."

In that case at the time of the commission of the murder for which Kring was indicted, the Supreme Court of Missouri had declared the law to be that when a conviction was had of murder in the second degree, on an indictment charging murder in the first degree, if the conviction was set aside the defendant could not again be tried for murder in the first degree. After the commission of the crime the Constitution of the State was so amended as to abrogate this rule, and allow a defendant to be again put upon his trial for the highest crime charged in the indictment. After the change in the Constitution, Kring, having been put on his trial for murder, made a agreement with the prosecuting attorney by which he was to plead guilty of murder in the second degree and receive a sentence of ten years' imprisonment in the penitentiary of the State. He entered his plea of guilty of murder in the second degree, but the court refused to be bound by the agreement of the prosecuting attor

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