CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE GRAY, after stating the cases, delivered the opinion of the court.
By section 5339 of the Revised Statutes, reenacting earlier acts of Congress, "every person who commits murder" "within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States," "shall suffer death."
The act of January 15, 1897, c. 29, entitled "An act to reduce the cases in which the penalty of death may be inflicted," provides, in section 1, that in all cases in which the accused is found guilty of the crime of murder under section 5339 of the Revised Statutes "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 at hard labor for life." 29 Stat. 487.
The question presented and argued in each of the three cases now before the court is of the construction and effect of this act of Congress.
The hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death. That end has been generally attained in one of two ways.
First. In some States and Territories, statutes have been passed establishing degrees of the crime of murder, requiring
the degree of murder to be found by the jury, and providing that the courts shall pass sentence of death in those cases only in which the jury return a verdict of guilty of murder in the first degree, and sentence of imprisonment when the verdict is guilty of murder in the lesser degree. See Hopt v. Utah, 104 U.S. 631, and 110 U.S. 574; Davis v. Utah, 151 U.S. 262, 267-269.
For instance, the statutes of the Territory of Utah contained the following provisions: "Every murder perpetrated by poison, lying in wait, or any other kind of wilful, 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 other human being, other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evincing a depraved mind regardless of human life, is murder in the first degree; and any other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree." "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 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." Compiled Laws of Utah of 1876, §§ 1919, 1920, pp. 585, 586.
In the leading case of Hopt v. Utah, this court held that evidence that the accused was in a state of voluntary intoxication at the time of the killing, (which would not have been competent in defence of an indictment for murder at common law,) was competent for the consideration of the jury upon the question whether he was in such a condition as to be capable of deliberate premeditation, constituting murder in the first degree under the statute. 104 U.S. 631. Upon a second trial of the same case, the territorial court, in charging the jury, having used this language, "That an atrocious and dastardly murder has been committed by some person is
apparent, but in your deliberations you should be careful not to be influenced by any feeling," the conviction was again reversed by this court, saying that this observation was naturally regarded by the jury as an instruction that the offence, by whomsoever committed, was murder in the first degree; whereas it was for the jury, having been informed as to what was murder, by the laws of Utah, to say whether the facts made a case of murder in the first degree or murder in the second degree. 110 U.S. 582. And in Calton v. Utah, 130 U.S. 83, a sentence of death upon a conviction of murder in the first degree was reversed, because the judge had not called the attention of the jury to their right, under the statute, to recommend imprisonment for life at hard labor in the penitentiary in place of the punishment of death; and without a recommendation of the jury to that effect the court could impose no other punishment than death.While those decisions have no direct bearing upon the question now in judgment, they are important as illustrating the steadfastness with ...