Rooney v. North Dakota
This writ of error brings in question a final judgment of the supreme court of the state of North Dakota, affirming the judgment of an inferior court of that state, by which, pursuant to the verdict of a jury, the plaintiff in error, John Rooney, was sentenced to death for the crime of murder in the first degree.

The sole question upon which the plaintiff in error seeks the judgment of this court, and the only one that will be noticed, is whether the statute under which he was sentenced was ex post facto, and therefore unconstitutional in its application to his case. His counsel agrees that the judgment must stand if the statute be constitutional.

Before, as well as after, the passage of the statute under which the sentence was pronounced, the punishment prescribed by the state for murder in the first degree was death or imprisonment in the penitentiary for life. N. D. Rev. Codes, 1889, § 7068.

By the statutes in force at the time of the commission of the offense, August 26th, 1902, as well as when the verdict of guilty was rendered, it was provided that when a judgment of death is rendered the judge must deliver to the sheriff of the county a warrant stating the conviction and judgment, and appointing a day on which the judgment is to be executed, 'which must not be less than three months after the day in which judgment is entered, and not longer than six months thereafter' (§ 8305); that when there was no jail within the county, or whenever the officer having in charge any person under judgment of death deemed the jail of the county where the conviction was had insecure, unfit, or unsafe for any cause, he could confine the convicted person in the jail of any other convenient county of the state (§ 8320); that the judgment of death should be executed within the walls or yard of the jail of the county in which the conviction was had, or within some convenient inclosure within such county (§ 8321); and that judgment of death must be executed by the sheriff of the county where the conviction was had, or by his deputy, one of whom, at least, must be present at the execution. N. D. Rev. Codes, 1899, pp. 1622, 1623.

The sentence of death was pronounced March 31st, 1903. Prior to that date, namely, on March 9th, 1903, the legislature-without changing the law prescribing death or imprisonment for life as the punishment for the crime of murder in the first degree-passed an act providing that all executions should take place at the penitentiary, and amending certain sections of the Revised Codes of 1899. By that act it was provided:

'§ 1. The mode of inflicting the punishment of death shall be by hanging by the neck until the person is dead; and the warden of the North Dakota penitentiart, or, in case of his death, inability, or absence, the deputy warden, shall be the executioner; and when any person shall be sentenced, by any court of the state having competent jurisdiction, to be hanged by the neck until dead, such punishment shall only be inflicted within the walls of the North Dakota penitentiary at Bismarck, North Dakota, within an inclosure to be prepared for that purpose under the direction of the warden of the penitentiary and the board of trustees thereof, which inclosure shall be higher than the gallows, and so constructed as to exclude public view.'

'§ 3. When a person is sentenced to death, all writs for the execution of the death penalty shall be directed to the sheriff by the court issuing the same, and the sheriff of the county wherein the prisoner has been convicted and sentenced shall, within the next ten days thereafter, in as private and secure a manner as possible to be done, convey the prisoner to the North Dakota penitentiary, where the said prisoner shall be received by the warden, superintendent, or keeper thereof, and securely kept in close confinement until the day designated for the execution. . . .'

'§ 14. That § 8305 of the Revised Codes of 1899, relating to judgment of death, warrant to execute, be amended so as to read as follows: § 8305. When the judgment of death is rendered the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk under the seal of the court, stating the conviction and judgment, and appointing a day upon which the judgment is to be executed, which must not be less than six months after the day in which the judgment is entered, and not longer than nine months thereafter.'

'§ 16. All acts and parts of acts in conflict with the provisions of this act are hereby repealed.' N. D. Laws, 1903, chap. 99, p. 119.

By the sentence it was ordered that the accused be conveyed to the state penitentiary, 'there to be kept in close confinement until October the 9th, 1903,' and, within an inclosure in that building to be erected for the purpose, be hung by the warden of the penitentiary, or, in case of his inability to act or his absence therefrom, by the deputy warden, before the hour of sunrise on the day fixed for the execution.

Messrs. B. F. Spalding and Seth Newman for plaintiff in error.

[Argument of Counsel from pages 322-323 intentionally omitted]

Messrs.Emerson Hall Smith and W. H. Barnett for defendant in error.

[Argument of Counsel from pages 323-324 intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court: 

Notes
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