McNulty

The defendant was accused by information of the crime of murder, alleged to have been committed in March, 1888. In August, 1888, he was convicted of murder in the first degree, and, in accordance with the law as it then stood, was sentenced to be hanged by the sheriff in the county jail. On appeal to this court the judgment of the superior court was affirmed: 26 Pac. 597 . But before a remittitur had issued our attention was called to certain amendments to the Penal Code, enacted by the last legislature, pending the appeal, changing the method and time for executing capital sentences, which, it is contended, are inapplicable to the case of this appellant, because they are, as to him, ex post facto, but which at the same time have the 'effect of repealing the old law, under which alone he could have been executed, the result being, as claimed, that in consequence of a blunder of the legislature he and all others in his situation must go free of all punishment. For the purpose of considering and determining this important question the 'judgment of affirmance was vacated and a reargument ordered. The case having been again argued and submitted, we are now to decide upon the effect of…

I regret that I am unable to concur in the foregoing opinion and judgment. I concur in that portion thereof which holds that the effect of the amendments of 1891 is to make such a change in the punishment prescribed for murders committed prior to their enactment as to bring them within the definition of an ex post facto law, and, therefore, that the punishment therein prescribed cannot be inflicted upon the defendant. I do not, however, concur in the conclusion deduced therefrom that we must, for this reason, conclude that the legislature did not intend that such result should follow, or that, if it had known that such would have been the result, it would not have enacted the amendments. Neither do I concur in the construction given to the amendments that the punishment for offenses committed while the former law was in force is so connected with that prescribed for future offenses that we must hold that the legislature did not intend that offenses thereafter committed should be punished in the mode prescribed by the amendments, unless prior offenses could be also punished in the same manner. The rule which generally obtains in the construction of statutes is that when a statute…