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and cannot influence our decision in it. We must, therefore, determine whether, according to the common law, the Supreme Court should have directed a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.

In The King v. Ellis (5 Barn. & Cress., 395), the prisoner was sentenced to be transported for fourteen years, when, according to law, he could only be transported for seven years, and the Court of King's Bench reversed the judgment, and discharged the prisoner, holding that there was no ground to send it back to be amended. In The King v. Bourne and others (7 Adol. and Ellis, 58), it was held, where an erroneous judgment is given by an inferior court, on a valid indictment (as by passing sentence of transportation in a case punishable only with death), and the defendants bring error, the appellate court can neither pass the proper sentence, nor send back the record to the court below, in order that they may do so; but the judgment must be reversed, and the defendants discharged. In Shepard v. The Commonwealth (2 Metcalf, 419), the prisoner was sentenced to be imprisoned four years, when the limit was three, and the Supreme Court of Massachusetts reversed the judgment and discharged him. And that court subsequently, in Christian v. The Commonwealth (5 Metcalf, 530), laid down the following rules, namely: "When a judgment in a criminal case is entire, and a writ of error is brought to reverse it, though it is erroneous in part only, it must be wholly reversed. The court, after reversing a judgment in a criminal case, cannot enter such judgment as the court below ought to have entered, nor remit the case to the court below for a new judg ment. These rules were approved by BRONSON, Ch. J., in The People v. Taylor (3 Denio, 91.)

My conclusion is, as the only error the Court of Sessions committed was in giving a wrong judgment, in part, against the prisoner, no new trial can be legally granted; and that the judgment must be wholly reversed, and the prisoner discharged.

I regret that I am forced to this conclusion, for it is quite

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clear that the prisoner is guilty, and will escape just punish ment. But this result cannot be avoided, for it is for the legislature, and not the courts, to alter the laws, in order to prevent the guilty escaping the punishment they deserve.

WRIGHT, J. (dissenting.) The defendant having been tried and convicted, in the Court of General Sessions, the case may be reviewed on the merits. (Laws of 1855, ch. 337.) I have, therefore, attentively examined the evidence, and think it justified the verdict. The case, it is true, in its general aspect, is somewhat remarkable. A man of education, of apparently reputable standing, and ordinarily peaceable disposition, upon the most trivial provocation, with a deadly weapon, assaults and kills a fellow tenant. But the fact of killing was not disputed; and the testimony tended to the conclusion, that the act, in the language of the statute, was "willful, deliberate and premeditated." The accused stabbed his victim, not once, but thrice, and in such places as he knew would inevitably produce death. The pretext that this was done in self defence was wholly unsupported by the evidence. The only witness. of the transaction disproved any violence on the part of the deceased; and a subsequent examination of the person of the prisoner showed no marks of an assault, except that the skin was slightly ruffled over his left eye.

Apart from the merits, however, there is a question of grave importance. The defendant was indicted under the statute of 1860, for the crime of murder. (Laws of 1860, ch. 410.) That statute defined the crime anew, dividing it into first and second degrees. The defendant was found guilty of murder in the first degree, and was sentenced to suffer the punishment of death, some thirteen months afterwards, and to be confined at hard labor in the State prison, until such punishment should be inflicted. It was urged, on motion in arrest of judgment, that there was no authority in law for pronouncing any sentence upon a conviction for murder in the first degree. I confess that I discover difficulty in successfully meeting the SMITH.-VOL. XIII.

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objection, if the ordinary rules applicable to the construction of penal statutes are to be applied.

The Revised Statutes declared that every person convicted of murder, as defined therein, should suffer death for the same. (2 R. S., 656, § 1.) It was further declared, that the punishment of death should in all cases be inflicted by hanging the convict by the neck until dead. (§ 25.) By the act of April, 1860, section one of title one of chapter one of part fourth of the Revised Statutes, was amended so as to read as follows: "§ 1. Every person who shall hereafter be convicted, first, of treason against the people of this state; or, second, of murder; or, third, of arson in the first degree, as those crimes are respectively declared in this title, shall be punished as herein provided;" and the section of the Revised Statutes prescribing the mode of inflicting the punishment of death, was expressly repealed. (Act of 1860, §§ 7, 11.) As thus amended, there was no penalty prescribed in the Revised Statutes for the crime of murder, nor indeed of treason, the amendment displacing the words, "shall suffer death for the same," and inserting in lieu thereof the words, "shall be punished as herein provided;" that is, as provided in the act of 1860. The effect was, to repeal the provisions of existing statutes for the punishment of death on convictions for the crime of murder. The offence was left without any legal penalty attached to it. The question therefore is, whether, in 1860, in defining the crime anew, and dividing it into degrees, the legislature prescribed the punishment. If there was an omission, through neglect or design, to specifically declare the punishment to follow a conviction for murder in the first degree, as defined in the act, the court was without legal authority to impose any punishment upon the convict. The defendant was convicted of murder in the first degree, under the act of 1860, and the authority for his punishment must be found in it. Although murder was an offence at common law, yet murder in the first degree, and murder in the second degree, are offences entirely of statutory creation. Nor can resort be had to the preëxisting law, to ascertain the punishment and the mode of its

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infliction; for that was displaced by a repeal, to make room for the substituted system, and cannot be resorted to for any purpose.

The act of 1860 did not specifically prescribe any punishment for the offence of murder in the first degree. The extent that can be claimed is, that the legislative intention, that the penalty should be death, is inferable from the provisions of two or three sections. The act begins with the declaration, that "no crime hereafter committed, except treason, and murder, in the first degree, shall be punished with death in the State of New York." What shall constitute murder in the first and second degrees, is then declared. By section 4 it is provided, that "when any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall at the same time be sentenced to confinement at hard labor in the State prison until such punishment of death shall be inflicted. The presiding judge of the court at which such conviction shall have taken place shall immediately thereupon transmit to the governor of the State, by mail, a statement of such conviction and sentence, with the notes of testimony taken by such judge on the trial." The 5th section provides that "no person so sentenced or imprisoned shall be executed in pursuance of such sentence within one year from the day on which such sentence of death shall be passed, nor until the whole record of the proceeding shall be certified by the clerk of the court in which the conviction was had, under the seal thereof, to the governor of the State, nor until a warrant shall be issued by the governor, under the great seal of the State, directed to the sheriff of the county in which the State prison may be situated, commanding the said sentence of death to be carried into execution." The sixth section declares specifically, that "every person" convicted of murder in the second degree shall be sentenced to undergo imprisonment in one of the State prisons, and be kept in confinement at hard labor for his or her natural life." The 8th section amends section 18 of title 1 of chapter 2, part 4 of the Revised Statutes, in respect to the inquisition of the

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jury in case of an insane convict, and provides that, "if it be found by such inquisition that such convict is insane, the sheriff shall convey said convict to the lunatic asylum for insane convicts, there to be kept at the expense of the State until such time as the superintendent thereof shall certify to the governor that said lunatic is sane, and the governor may, thereupon, issue his warrant for his execution, if he was convicted of murder in the first degree, or may direct that he be imprisoned in one of the State prisons, according to law." The 9th section is as follows: "§ 9. The provisions of this act for the punishment of murder in the first degree shall apply to the crime of treason; and the punishment of murder in the second degree shall apply to all crimes now punishable with death, except as herein provided." By section 11 all the provisions of the Revised Statutes are repealed that related to the term of execution for capital offences; that made it the duty of the judge to transmit to the governor a statement of conviction and notes of the testimony; that authorized the governor to require the opinion of the judges or attorney. general; that provided for an inquisition in relation to preg nancy of female convicts, and empowered the governor, if the female was no longer quick with child, to either issue his warrant for her execution, or, in his discretion, commute her punishment to perpetual imprisonment; that authorized the Supreme Court to issue a warrant for the execution of the sentence after the day originally fixed for such execution had passed; and that provided that the punishment of death should be inflicted by hanging.

From this synopsis of the act, it appears that it contains no special provision for the punishment of murder in the first degree. It seems, however, to have been supposed that the act did provide for the punishment of that offence, for the 9th section declares that "the provisions of this act for the pun ishment of murder in the first degree shall apply to the crime of treason." This can only be explained, or the act rendered intelligible, upon the supposition that the bill, as originally prepared, contained a separate provision for punishing, capi