the jury that if the traverser was not personally present at the time of applying the fire to the treasury building, or not sufficiently near, at the time, to be aiding and abetting in applying the fire, although he was concerned in the design of burning the building, he was but an accessory before the fact, and entitled to be acquitted under the indictment. United States v. White,* 5 Cr. C. C., 38.

§ 3039. misdemeanors.- Misdemeanors do not admit of accessories either before or after the fact, but the general rule is that whatsoever will make a party an accessory before the fact in felony will make him a principal in a misdemeanor if he is properly charged as such in the indictment. United States v. Hartwell, 3 Cliff., 227; United States v. Gooding, 12 Wheat., 460; United States v. Harries,* 2 Bond, 311; United States v. White,* 5 Cr. C. C., 73.

§3040. In cases of misdemeanors, all those who are concerned in aiding and abetting, as well as perpetrating, the act are principals. Under such circumstances, there is no room for questions of actual or constructive presence or absence; for, whether present or absent, all are principals. In such cases those aiding and abetting may be charged with aiding and abetting, but they are punished as principals. United States v. Gooding, 12 Wheat., 460.

$ 3041. Those guilty in the first degree are those who were actually present. Those guilty in the second degree are those so connected with the offense that they are constructively present. United States v. Harries,* 2 Bond, 311.

§ 3042. The third section of the penitentiary act for the District of Columbia, declaring "that every person duly convicted of the crime of maliciously, wilfully and fraudulently burning any dwelling-house, or any other house, barn or stable adjoining thereto, ... or of wilfully and maliciously burning any of the public buildings in the cities, towns or counties of the District of Columbia, belonging to the United States, or the said cities, towns or counties, . . . or as being accessory thereto, shall be sentenced,” etc., does not make any accessories in the misdemeanors described in the act, and the accessories in the misdemeanors described must be indicted as principals. United States v. White,* 5 Cr. C. C., 73. § 3043. — trial of accessory.- Where a person is charged as an accessory, he may be tried and convicted if the principal cannot be found. If the principal is acquitted on a count in the indictment involving the charge against the accessory, the latter must be discharged. United States v. Crane,* 4 McL., 317.

3044. The conviction and sentence of a person in a circuit court for robbing the mail is most conclusive evidence in another circuit court against his accessory, that the crime of which the principal was convicted was committed by him. United States v. Wood,* 2 Wheeler, 325.

§ 3045. Where a principal cannot be punished for an act under any law, it seems that one merely aiding or abetting the act cannot be punished. United States v. Libby, 1 Woodb. & M., 231.

§ 3046. It seems that the plea of not guilty pleaded by an accessory puts in issue the charge against the principal as well as that against himself, and whether tried at the same time with the principal or subsequently, he may controvert the guilt of the principal as fully as the principal himself may do, even when the latter is separately indicted and tried by a separate jury. United States v. Hartwell, 3 Cliff., 238.

§ 3047. It seems that where principal and accessory are tried together the confessions of the former are admissible to prove his own guilt, and are evidence of that fact as against the latter. Ibid.

§ 3048. murder.- The act of congress punishing murder does not embrace an accessory before the fact; and as the courts have no common law jurisdiction, an indictment charging the accused as an accessory before the fact cannot be sustained. United States v. Ramsay,* Hemp., 481.

§ 3049. When a murder is committed, all who are present, aiding, abetting and assailing, are equally guilty with him who gave the fatal stroke. An abettor of murder, in order to be a principal, must be present at the transaction. If he is absent he may be an accessory, but in treason all are principals, and one may be guilty of aiding and abetting though not present. United States v. Hanway, 2 Wall. Jr., 139 (§§ 1195–1201).

$3050.

seamen.- A seaman who aids and abets in confining the master of the ship is considered in law as a principal offender. If one seaman seizes and confines the master, and a second seizes the mate with a view to favor the attack upon the master, the second is equally guilty of confining the master. But otherwise if they are distinct affrays, arising from distinct causes. United States v. Henry,* 4 Wash., 428.

§ 3051. — inciting another. Language addressed to persons who immediately after wards commit a misdemeanor, actually intended by the speaker to incite those addressed to commit it, and adapted thus to incite them, is such a counseling or advising to the crime as the law contemplates, and the person so inciting others may be indicted as principal. Charge to Grand Jury, 2 Curt., 637.

§ 3052.

testimony of accomplice.- The testimony of accomplices is to be heard with suspicion, and if their testimony should be improbable or contradicted by circumstances or by other testimony, the jury may discredit it. But if all the circumstances of the case corroborate the testimony of an accomplice and are in fact merely connected by that testimony, the facts supplied by the accomplice are not to be disregarded. United States v. Chapels,* 2 Wheeler, 205.

§3053. Where an accomplice testifies for the prosecution and makes a full disclosure, he is entitled to a discharge; and it is not material that the person against whom he testified was acquitted. If the district attorney will not enter a nolle prosequi, the court will continue the case until a pardon can be applied for. United States v. Lee,* 4 McL., 103.

$3054. Though accomplices in a crime are competent witnesses, and though their testimony is to be considered by the jury, yet it is always to be received with extreme caution, and weighed and scrutinized with great care, and if unsupported should not be relied upon by the jury unless it produces in their minds the fullest and most positive conviction of its truth. United States v. Babcock,* 3 Dill., 590, 619.

§3055. It seems that where a criminal prosecution against a particeps criminis is prima facie barred by the statute of limitations, he may be compelled to testify in behalf of the government in a civil suit against one implicated with him, but after so testifying he cannot be prosecuted. United States v. Smith,* 4 Day (Conn.), 123.

XXXI. PUNISHMENT.

SUMMARY — Executing death penalty by shooting. §§ 3056, 3057; power of the territories, §3058.- Place of imprisonment, § 3059.— Hard labor a part of the punishment, § 3030.— Imprisonment outside of state in which conviction is had, § 3061.- No permission from state to use penitentiary, § 3062.— Jail removed by the state, § 3063.

$3056. Punishment by shooting, as a mode of executing the death penalty for the crime of murder in the first degree, is not a cruel or an unusual punishment within the meaning of the eighth amendment. Wilkerson v. Utah, SS 3064-67. See $ 3084, 3096.

§3057. Under a law of a territory providing that every person guilty of murder in the first degree shall suffer death, taken in connection with a law making it the duty of the court authorized to pass sentence to determine and impose the punishment prescribed, and in connection with the fact that there is no other specific regulation as to the mode of executing such a sentence, the court has authority to sentence one convicted of murder in the first degree to be shot until he is dead. Ibid.

§ 3058. It was not the intention of congress that the act (R. S., sec. 5325) providing that the manner of inflicting the punishment of death shall be by hanging should supersede the power of the territories to legislate upon the subject. Ibid.

§ 3059. In all cases where a person is sentenced to confinement for longer than one year he may be imprisoned in a state penitentiary. Ex parte Karstendick, § 3068-71. See § 3073.

3060. In all cases where the statute makes hard labor a part of the punishment for an offense it is imperative upon the court to include that in its sentence. But where the statute requires imprisonment alone a federal court may, in its discretion, order execution of its sentence at a place where labor is exacted as part of the discipline and treatment of the place of confinement. Ibid. See § 3098.

§ 3061. The courts of the United States may order an offender imprisoned outside the state in which he is convicted if there is no suitable place for such confinement within the state, and its finding that there is no suitable place within the state is a finding on a question of fact, and cannot be reviewed by a court on habeas corpus. Ibid.

§ 3062. Though a person is confined by sentence of a federal court in a penitentiary of a state which has not given the federal government permission to use it for the confinement of its criminals, yet if the state permits a criminal to be confined there without objection, it is equivalent to such express permission, and the criminal cannot take advantage of the lack of Ibid.

it.

§ 3063. A defendant was sentenced to be confined in a certain jail. Afterwards the jail was, by act of the state legislature, removed to another place and the prisoner was removed with it. Held, that he was properly imprisoned at the latter place, and that he had no right to be discharged therefrom on the ground that he was not confined in the place to which he was sentenced. In re Hartwell, § 3072.

[NOTES.- See §§ 3073-3102.]

ERROR to the Supreme Court of the Territory of Utah.

Opinion by MR. JUSTICE CLIFford.

STATEMENT OF FACTS.-Duly organized territories are invested with legis lative power, which extends to all rightful subjects of legislation not inconsist ent with the constitution and laws of the United States. R. S., sec. 1851. Congress organized the territory of Utah on the 9th of September, 1850, and provided that the legislative power and authority of the territory shall be vested in the governor and legislative assembly. 9 Stat., 454.

Sufficient appears to show that the prisoner named in the record was legally charged with the wilful, malicious and premeditated murder of William Baxter, with malice aforethought, by indictment of the grand jury in due form of law, as fully set forth in the transcript; and that he, upon his arraignment, pleaded that he was not guilty of the alleged offense. Pursuant to the order of the court, a jury for the trial of the prisoner was duly impaneled and sworn; and it appears that the jury, after a full and fair trial, found, by their verdict, that the prisoner was guilty of murder in the first degree. Regular proceedings followed, and the record also shows that the presiding justice in open court sentenced the prisoner as follows: That "you be taken from hence to some place in this territory, where you shall be safely kept until Friday, the 14th day of December next; that between the hours of 10 o'clock in the forenoon and 3 o'clock in the afternoon of the last-named day you be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead."

Proceedings in the court of original jurisdiction being ended, the prisoner, sued out a writ of error and removed the cause into the supreme court of the territory, where the judgment of the subordinate court was affirmed. Final judgment having been rendered in the supreme court of the territory, the prisoner sued out the present writ of error, the act of congress providing that such a writ from this court to the supreme court of the territory will lie in criminal cases where the accused is sentenced to capital punishment or is convicted of bigamy or polygamy. 18 Stat., 254. Appended to the proceedings is the assignment of error imputed to the court below, which is repeated in the same words in the brief of his counsel filed since the case was removed into this court. No exception was taken to the proceedings in either court prior to the sentence, the assignment of error being that the court below erred in affirming the judgment of the court of original jurisdiction and in adjudging and sentencing the prisoner to be shot to death.

Murder, as defined by the compiled laws of the territory, is the unlawful killing of a human being with malice aforethought, and the provison is that such malice may be express or implied. Comp. Laws Utah, 1876, 585. Express malice is when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature, and it may be implied when there is no considerable provocation, or when the circumstances attending the killing show an abandoned or malignant heart. Criminal homicide, when perpetrated by a person lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any one of the offenses therein enumerated, and evidencing a depraved mind, regardless of human life, is murder in the first degree. Id., 586.

Pro

vision is also made that every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, at the discretion of the court; and that every person guilty of murder in the second degree shall be imprisoned at hard labor in the penitentiary for not less than five nor more than fifteen years. Comp. Laws Utah, 1876, 586.

Duly convicted of murder in the first degree as the prisoner was by the verdict of the jury, it is conceded that the existing law of the territory provides that he "shall suffer death;" nor is it denied that the antecedent law of the territory which was in force from March 6, 1852, to March 4, 1876, provided that "when any person shall be convicted of any crime the punishment of which is death, he shall suffer death by being shot, hung or beheaded, as the court may direct," or as the convicted person may choose. Sess. Laws Utah, 1852, p. 61; Comp. Laws Utah, 1876, 564. When the Revised Penal Code went into operation, it is doubtless true that it repealed that provision, as section 400 provides that "all acts and parts of acts" heretofore passed "inconsistent with the provisions of this act be and the same are hereby repealed." Comp. Laws Utah, 651.

Assume that section 124 of the prior law is repealed by the Revised Penal Code, and it follows that the existing law of the territory provides that every person guilty of murder in the first degree shall suffer death, without any other statutory regulation as to the mode of executing the sentence than what is found in the following enactment of the Revised Penal Code. Section 10 provides that "the several sections of this code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed." Comp. Laws Utah, 1876, 567. Construed as that provision must be in connection with the enactment that every person guilty of murder in the first degree shall suffer death, and in view of the fact that the laws of the territory contain no other specific regulation as to the mode of executing such a sentence, the court here is of the opinion that the assignment of error shows no legal ground for reversing the judgment of the court below. Authority to pass such a sentence is certainly not possessed by the circuit courts of the United States, as the act of congress provides that the manner of inflicting the punishment of death shall be by hanging. R. S., sec. 5325.

§ 3064. Powers of territorial legislatures.

Punishments of the kind are always directed by the circuit courts to be inflicted in that manner, but organized territories are invested with legislative power which extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. By virtue of that power the legislative branch of the territory may define offenses and prescribe the punishment of the offenders, subject to the prohibition of the constitution that cruel and unusual punishments shall not be inflicted. Story, Const. (3d ed.), sec. 1903. Good reasons exist for supposing that congress never intended that the provision referred to, that the punishment of death shall be by hanging, should supersede the power of the territories to legislate upon the subject, as the congressional provision is a part of the first crimes act ever passed by the national legislature. 1 Stat., 114. Different statutory regulations existed in the territory for nearly a quarter of a century, and the usages of the army to the present day are that sentences of the kind may in certain cases be executed by shooting, and in others by hanging. Offenses of various kinds are defined

in the rules and articles of war where the offender, if duly convictel, may be sentenced to the death penalty. In some of those cases the provision is that the accused, if convicted, shall suffer death, and in others the punishment to be awarded depends upon the finding of the court-martial; but in none of those cases is the mode of putting to death prescribed in the articles of war or the military regulations. Article 96 provides that no person shall be sentenced to suffer death except by the concurrence of two-thirds of the members of a general court-martial, and in the cases specified in the rules and articles enacted by congress. R. S., p. 238.

§ 3065. Modes of capital punishment prescribed by military law.

Repeated instances occur where the death penalty is prescribed in those articles; but the invariable enactment is that the person guilty of the offense shall suffer death, without any specification as to the mode in which the sentence shall be executed, and the regulations of the army are as silent in that respect as the rules and articles of war. Congress having made no regulations in that regard, the custom of war, says a learned writer upon the subject, has, in the absence of statutory law, determined that capital punishment be inflicted by shooting or hanging; and the same author adds to the effect that mutiny, meaning mutiny not resulting in loss of life, desertion, or other military crime, if a capital offense, is commonly punished by shooting; that a spy is always hanged, and that mutiny, if accompanied by loss of life, is punished in the same manner, that is, by hanging. Benet, Courts-Martial (5th ed.), 163.

Military laws, says another learned author, do not say how a criminal offending against such laws shall be put to death, but leave it entirely to the custom of war; and his statement is that shooting or hanging is the method determined by such custom. Dellart, Courts-Martial, 196. Like the preceding author, he also proceeds to state that a spy is generally hanged, and that mutiny unaccompanied with loss of life is punished by the same means; and he also concurs with Benet, that desertion, disobedience of orders, or other capital crimes. are usually punished by shooting, adding that the mode in all cases, that is, either shooting or hanging, may be declared in the sentence. Corresponding rules prevail in other countries, of which the following authorities will afford sufficient proof: Simmons, Courts-Martial (5th ed.), sec. 645; Griffith, Military Law, 86. Capital punishment, says the author first named, may be by either shooting or hanging. For mutiny, desertion or other military crime it is commonly by shooting; for murder not combined with mutiny, for treason, and piracy accompanied with wounding or attempt to murder, by hanging, as the sentence in England must accord with the law of the country in regard to the punishment of offenders. Exactly the same views are expressed by the other writer, which need not be reproduced.

3066. Capital punishment by shooting is not a cruel or unusual punishment, within the terms of the constitution.

Cruel and unusual punishments are forbidden by the constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment. Soldiers convicted of desertion or other capital military offenses are in the great majority of cases sentenced to be shot, and the ceremony for such occasions is given in great fullness by the writers upon the subject of courts-martial. Simmons, secs. 759, 760; DeHart, pp. 247, 248. Where the conviction is in the civil tribunals, the rule of the common law was that the