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not a mere possibility of his innocence, was Ora Lewis, alias De Morris, alias "Mutt," proper.
and Roy Lewis, alias Joe Lewis, alias De 6. CRIMINAL LAW Ow1172(7)—INSTRUCTION- Morris, were convicted of murder in the first REASONABLE DOUBT-COMPLAINT.
In a prosecution for murder, an instruction degree, and they appeal. Affirmed. that the state must show beyond a reasonable
Defendants were charged by indictment doubt every material fact constituting the offense charged, and that, if the jury had a rea- with the murder in the first degree of police sonable doubt of the existence of any material officer John F. McKenna. The jury found fact as to defendant they should acquit, consid- them both guilty as charged, and fixed their ered in connection with proper charge on reasonable doubt, was favorable to defendants, so
punishment at death. The trial court comthat they had no right to complain.
muted the defendant Roy Lewis' punishment 7. CRIMINAL LAW Eww1172(7)—APPEAL-FA-to a life term in the penitentiary. They VORABLE INSTRUCTION.
were sentenced accordingly, and have apIn a trial for murder, an instruction that there was no evidence showing that one of the pealed. After the disposal of the case in the defendants was present to aid in the killing of trial court, the defendants discharged the deceased, or that he did so aid, was in his favor, lawyer who had represented them during the so that he had no right to complain.
trial. Other counsel appears for them in this 8. HOMICIDE 30(1)-PRINCIPALS-MURDER
court, and in his brief herein he says: --CONSPIRACY, If there was a conspiracy between defend
“An examination of the facts and a reading ants to kill an arresting officer both defendants of this entire record must convince this court would be guilty, though one of them at the time that defendants have been prejudiced and have had no purpose or intent to aid, and did not aid, been prevented from fairly presenting their
dein such killing, as a conspiracy makes each re- fense by the misconduct, lack of skill, learning, sponsible for the act of the other done in the competency, or experience of the attorney who scope of such conspiracy.
appeared for defendants in the trial court. 9. Criminal Law Cm1186(5) – APPEAL – RE; been the ruling in many cases.'
That such a situation warrants a new trial has - INCOMPETENCY OF DEFENDANTS COUNSEL.
Such claim made on behalf of defendants, In a trial for the murder of an arresting and the fact that, as to one of them, the punofficer, where the defendants' trial attorney was vigilant and tireless, and, after a prolonged fight, ishment is death, call for a critical examinaprevailed on the question as to whether the tion of the whole record. statements of one of the defendants should be
No evidence was introduced on the part admitted in evidence, which on the facts was the only point possible to win, but did not in his of the defendants on the main issue. In the motion for a new trial properly raise the points following statement we shall set out simply on the giving and refusing of instructions, and as facts those things which the evidence where the case was fairly presented by the cir- tends to establish. The killing occurred on cuit attorney, and the rights of defendants were vigilantly guarded by the trial judge, the con- April 7, 1916. From the previous January viction would not be reversed, on the ground until then the defendants and their brother that defendants did not have a fair trial by Frank lived with their mother and stepfareason of the misconduct, incompetency, or in- ther, Mr. and Mrs. Bubb, at 4251 Athlone experience of the trial attorney.
Court, though the evidence indicates that On Motion to Modify Judgment. they, at times, had rooms elsewhere. In the 10. CRIMINAL LAW 1207 — DEATH SEN- rear of the Athlone home was a garage on TENCE-ABOLITION-EFFECT.
Act April 13, 1917 (Laws 1917, p. 246, 88 the alley, used by the brothers. For several 1 and 2), abolishing capital punishment after weeks prior to the killing the defendants had its passage, and repealing conflicting laws, con- also rented and used a garage on an alley strued in connection with Rev. St. 1835, $ 8063, in the rear of 4172 Delmar avenue. About providing that the repeal of a law shall not March 10, 1916, two automobiles, a Ford and affect punishment for an offense committed while in force, section 8064, prescribing the effects of a Hudson, were stolen in the city. On the a repeal of a law upon pending actions, and night of April 6th thereafter the defendants, Rev. St. 1909, § 4920, providing that if the their brother Frank, and another, went in penalty for any offense be reduced by alteration of the law creating it shall be assessed those two cars to Mexico, Mo., where they according to the amendatory law, did not abolish stole a boy's bicycle and several hundred dolthe death penalty as to an offense committed lars' worth of copper trolley wire. The de. before its passage, for which sentence of death fendants, in the Ford car, pulled into the was imposed January 10, 1917, and, under section 5314, the Supreme Court, on affirmance, alley near the Delmar garage about half would direct execution of the judgment.
past 7 the next morning. At that time Roy 11. CRIMINAL LAW 996(1)-APPEAL-COR- was carrying a loaded revolver in a holster
RECTION AS TO TIME OR PLACE OF IMPRISON- / which hung in the middle of his back, under MENT.
Under Rev. St. 1909, 5316, providing that his coat. Ora had a similar gun concealed the Supreme Court on appeal may correct any somewhere in his clothes in front of him, error of the trial as to the time or place of the McKenna, on a motorcycle, followed the depunishment, the court has no power to correct the judgment as to any other errors, and where fendants into the alley, where he arrested the sentence and judgment were correct at the and searched them both, taking Roy's gun time of their entry, and a later law did not af- from him, but failing to find Ora's. McKenfect them, no correction will be made.
na took the defendants into an oil filling staAppeal from St. Louis Circuit Court; J. tion on the alley, and directed the person in Hugo Grimm, Judge.
charge, George Fisher, Jr., to call the wagFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 201 S.W.-6
on at police headquarters. Fisher called on Defendants objected to the evidence as to the telephone, which was in the corner of the killing of Dillon, on the ground that such the room on the wall. The defendants were killing was another and distinct offense from standing about a foot apart to the left and the one charged, and for that reason incomtowards the rear of Fisher. They were fac- petent. The objection was overruled. ing McKenna, whose attention was attracted At the close of the state's case demurrers for a moment by the arrival of another au- thereto were offered in behalf of each of the tomobile back of him and just outside the defendants separately. They were both overstation. As the officer turned to look at ruled. The court instructed fully on all questhe car, Ora pulled his gun and shot the of- tions arising in the case. It, however, conficer, killing him. Fisher turned from the fined the instructions to murder in the first telephone just in time to see the shot, but not degree, refusing one on the second degree ofin time to see the drawing of the gun. In
fered by defendants. Among the instrucstantly after the shooting the defendants tions are the following: rushed from the station and attempted to find Frank and the Hudson car, but Frank, act together with a common intent and purpose
"Second. All persons are equally guilty who who had come into the alley after the ar- in the commission of a crime, and a crime so rest and before the killing, on seeing the committed by two or more persons jointly is the situation had scurried away in the Hudson act of all and each so acting. However, the car. The defendants, failing to find their mere presence of a person upon the scene of the
shooting and killing of another, even though he brother, jumped into the Ford car and got mentally approve of what is being done, will not, away. Soon after 8 o'clock that morning the in the absence of some word or act of approval defendants arrived at the garage in the or encouragement, make such party guilty of rear of the defendants' home at Athlone the crime; yet if he be present, and by words or
actions aid or advise or encourage the shooting, Court, and a few moments after that Officer with the intent that the words or acts of enWilliam A. Dillon, who had been notified of couragement should encourage and abet the the death of McKenna, reached the Athlone crime committed, he will be equally guilty with
the person who actually commits the physical garage, in which he found the defendants. deed. He entered that garage and was there killed "If, however, several enter into a conspiracy, by these defendants with a hatchet and agreement, or common design to commit a felshovel. The defendants and two others ony, then the act of one of them, proceeding ac
cording to the common plan, is in law the act of wrapped the dead body in a blanket, loaded each, and each of them will be held responsible it into the Hudson car, took it about five therefor in the law, as though he himself had miles into the country, dumped it over the committed the physical act, and this notwithend of a culvert into a deep ravine, and cov- commission of the physical act itself.
standing that he may have taken no part in the ered it without six inches of dirt, leaving “The court further instructs you that there exposed a protruding foot. On Sunday, April is no evidence in the case which would warrant 9th, the body was discovered. The defend you in finding that Roy Lewis was present at ant Roy Lewis was arrested at his home the ing or abetting the same, or that he, by word
the scene of the shooting for the purpose of aidfollowing night, and Ora was arrested in spoken or act committed by him at the time of Kansas City the following September. He the shooting, aided, abetted, or encouraged the was then living under an assumed name.
same, and the only ground upon which he could
be held legally responsible for said shooting The state offered to put in evidence a writ- would be that it was done in the execution of a ten statement made and signed by defendant conspiracy or agreement to which he was a Roy Lewis at police headquarters as to the party:
“Third. The court further instructs the jury killing of McKenna and Dillon, and also of- that if you find from the evidence and beyond a fered to prove an oral statement by Roy reasonable doubt that defendant Ora Lewis did showing a conspiracy of the brothers to kill willfully, deliberately, premeditatedly, and out the police when necessary to make an es
of his malice aforethought shoot and kill John
F. McKenna, in the manner required to be provcape. The preliminary proof as to whether en in the preceding instruction in order to consuch statements were voluntarily made was vict Ora Lewis, and if you further find from the taken before the court in the absence of the evidence and beyond a reasonable doubt that jury, and consumed several days in the tak- the said Ora Lewis and Roy Lewis entered into
prior to the shooting of said John F. McKenna ing. The trial court, in a masterly discussion an agreement or conspiracy with each other, in of the evidence on that question, and of the which it was mutually agreed between them that law and the duty of the court, acquitted the they would jointly commit acts of larceny or police of any intentional mistreatment of the stealing, and that if interrupted in the commis
sion thereof, or apprehended by officers of the defendant Roy in connection with such state police while engaged in the commission of such ments, but held that the evidence showed larceny, or in removing property stolen by them, that the questioning of the defendant was too that they would resist or endeavor to escape, persistent and too long continued while he and if you believe that defendant Ora Lewis was at times being held incomunicado. The shot and killed said John F. McKenna, in the
prosecution of the objects of said conspiracy (if statements were excluded for that reason,
you find there was such a conspiracy), then dethe court saying:
fendant Roy Lewis would be equally responsible “I cannot imagine any physical torture be as defendant Ora Lewis for such shooting and ing quite so severe as the refined torture of killing, and you should find defendant Roy Lewkeeping a person on edge by continued and re is guilty of murder in the first degree, and unpeated examination,"
less you find the facts to be as stated in this in.
struction you will acquit the defendant Roy ! F. McKenna, even though you should believe Lewis.
that either or both of them are guilty of any "Tbird. (A) The court further instructs the or all of the other offenses mentioned in the evijury that if you find and believe from the evi- dence." dence that the defendants, Ora Lewis and Roy
The tenth instruction contained the followLewis, had entered into an agreement or conspiraky with each other in which it was agreed be- ing: tween them that they would jointly commit acts “If, upon consideration of all the evidence, you of larceny or stealing, and that if interrupted in have a reasonable doubt of the defendants' guilt, the commission thereof or apprehended by offi- you should acquit; but a doubt, to authorize cers of the police while engaged in the commis- an acquittal on that ground, ought to be a subsion of such larceny, or in removing the prop- stantial doubt touching the defendants' guilt; erty stolen by them, they would not resist but and not a mere possibility of their innocence.' would endeavor to escape, and that in attempt- The eleventh is as follows: ing such escape they and neither of them would kill or do great bodily injury to the officer ar
"The court instructs the jury that it devolves resting them, and if you believe that defendant upon the state to prove to the jury, beyond a Ora Lewis shot said John F. McKenna, and to constitute the offense with which the defend
reasonable doubt, every material fact necessary tbat in doing so he went outside of the common plan and committed an independent act wholly ants are charged; and if the jury have a reaoutside of the common design, then you cannot sonable doubt, arising from the lack or insufficonvict defendant Roy Lewis for such shooting, ciency of the evidence, of the existence of any unless you believe that
such shooting was the such material facts, as to either defendant, the natural and approximate result of carrying out jury will acquit such defendant." their purpose to escape. If it was the natural Defendants asked lot of instructions and approximate result of carrying out such which were refused, but there was no exceppurpose, then the defendant Roy Lewis would tion to such refusal. During the argument be equally guilty with defendant Ora Lewis, even though the shooting and killing of an offi- of Mr. McCullen for the state the following cer was not actually contemplated in their agree occurred: ment,
"Mr. McCullen: When we think of this evi"Fourth. The court instructs the jury that dence and picture to our minds that scene in while it devolves upon the state to prove a con- that oil station that morning and remember the spiracy, such as is referred to in the preceding subsequent events, I think we are not going too instructions, to your satisfaction and beyond a far when we say that that evidence shows that reasonable doubt, yet it need not be proven by when John F. McKenna, the gent of organized direct evidence, but may be deduced from facts society, stood there with these men under arand circumstances proven to your satisfaction, rest, keeping in mind their subsequent actions as provided you can satisfactorily and reasonably disclosed by this evidence, I feel that we may infer the existence of such a conspiracy from safely say that there in that oil station civilizaall the evidence. Before you can and the ex- tion, personified by John F. McKenna, stood istence of a conspiracy from circumstantial evi- face to face with savagery. dence, you must be satisfied beyond a reasonable "Mr. Weiss: I object to the remark of the doubt not only that all the circumstances proven circuit attorney. are consistent with defendants' having formed "The court overruled the objection; to which such a conspiracy, but you must also be satisfied ruling of the court defendants, by their counsel, that the facts are such as to be inconsistent then and there duly excepted' and still continue with any other reasonable conclusion than that to except." the defendants did form such conspiracy. If
The only points made in the motion for a facts proven are consistent with any reasonable conclusion that defendants did not form new trial as to the giving, refusing to give, a conspiracy, that is sufficient to raise a reason- or failing to give, instructions are as follows: able doubt, and in such event you should find “(4) Because the court erred in incorrectly that there was no conspiracy or agreement be- / declaring the law governing the case in the intween defendants, and in that event you must structions to the jury. (5) Because the court acquit defendant Roy Lewis.”
erred in misdirecting the jury as to the law "Sixth. In this case the state has introduced governing the case in its instructions to the evidence tending to prove the theft of two auto-jury. (6) Because the court failed to direct the mobiles in the month of March, 1916, some cop-jury in a material matter necessary for their per wire and a bicycle in the month of April, information. (7) Because the instructions as 1916, all prior to the alleged shooting of John given by the court are a comment on the eviF. McKenna, and also evidence tending to provedence. *(8) Because the court omitted to take, the killing of one William A. Dillon in the by a proper instruction in writing, from the month of April, 1916, and subsequent to the jury's consideration certain illegal, incompetent, shooting of said John F. McKenna.
immaterial, irrelevant, and improper testimony "You are instructed that you can only consid- introduced by the state and admitted over and er such testimony for the purpose for which it against the timely objection of the defendants. was admitted, namely, that concerning crimes (9) Because the court erred in refusing to give preceding the killing of John F. McKenna was the instructions asked for by defendants at the introduced to show a motive and reason for close of the state's case. shooting said McKenna, and that concerning the killing of William A. Dillon was admitted as
A. Samuel Bender, of St. Louis, for appeltending to explain the movements of the defend-lants. Frank W. McAllister, Atty. Gen., and ants following the shooting of said John F. Mc- Henry B. Hunt, Asst. Atty. Gen., for the Kenna, and as tending to show whether they State. were made in an attempt to flee and avoid arrest and prosecution for said shooting and kill
ROY, C. (after stating the facts as above). ing, or were the result of other causes than a consciousness of guilt and a desire to avoid ar- [1, 2] Appellants raise two points which can rest and prosecution.
be best considered together. It is contended: "The defendants are on trial for the alleged (1) That there is no evidence showing guilt murder of John F. McKenna, and you cannot
on the part of Roy Lewis; (2) that the adconvict them, or either of them, in this case, unless you find them, or him as the case may mission of evidence as to the killing of Dillon be, guilty of the charge of murdering said John was error.
In State v. Bailey, 190 Mo. loc. cit. 280, 88 | Rowe, 271 Mo. 88, 196 S. W. 7; State v. SelS. W. 740, this court quoted from People v. leck, 199 S. W. 129. However, as this is a Molineux, 108 N. Y. 264, 61 N. E. 286, 62 L. capital case, we have set out the instructions R. A, 193, as follows:
so far as we have deemed necessary to cover "Generally speaking, evidence as to other the material points raised by counsel. We crimes is competent to prove the specific crime think that the defendants have not suffered when it tends to establish, first, motive; second, intent; third, the absence of mistake or
in those particulars. The instruction on accident; fourth, a common scheme or plan em- murder in the second degree was properly bracing the commission of two or more crimes, refused, as there was no evidence on which so related to each other that proof of one tends to base it. State v. Hopper, 71 Mo. 425; State to establish the others; fifth, the identity of the person charged with the commission of the v. Umble, 115 Mo. 452, 22 S. W. 378 ; State v. crime on trial."
Fairlamb, 121 Mo. 137, 25 S. W. 895; State
v. Wooley, 215 Mo. 620, 115 S. W. 417. We hold that all the evidence in the case, The tenth instruction on the subject of including the circumstances of the killing of reasonable doubt fully complied with the reDillon, shows clearly a conspiracy to murder quirements stated in State v. Christian, 253 whenever necessary in the course of defend- Mo. loc. cit. 397, 161 S. W. 736. ants' business of stealing. They were in pos The eleventh instruction as to a reasonable session of two garages, covers to which they doubt about any one fact necessary to show fled when the police were in pursuit. They guilt, when considered in connection with had two stolen automobiles. They had just the tenth instruction, is favorable to the dereturned from an all-night raid upon another fendants, and they have no right to comcity. Each had gun on his person, con- plain. cealed in an unusual place, Roy's in the mid [7,8] III. Appellant's counsel makes sevdle of his back, and Ora's in his clothes in eral severe criticisms of the instructions, of front of him. That shows a purpose and in- which the following is a sample: tent on their part that the police should fail "I will now proceed with instruction No. 2, to discover the guns. After a rather diligent and quote such part of same which I believe is search, we have failed to find any authority undoubtedly erroneous: on the question as to whether the carrying of evidence in the case which would warrant you
" "The court instructs you that there is no a concealed weapon has, in itself alone, any in finding that Roy Joe Lewis was present at tendency to prove an intent to take human the scene of the shooting for the purpose of life. In the absence of such an authority, aiding or abetting the same, or that he, by word we will concede that, without further show- of the shooting, aided, abetted, or encouraged
spoken or act committed by him at the time ing, an intent to murder cannot be imputed the same, and the only ground upon which he either to the man who unlawfully carries could be held legally responsible for said shootconcealed weapons or to the unarmed thief. ing would be that it was done in the execution
of a conspiracy or agreement to which he was But when those two characters are combined a party.' in one, the armed thief, it is like taking two "This part of instruction No. 2 virtually tells chemicals, each in itself inert, and combining the jury. that, even though the defendant Roy
Joe Lewis was not present to aid, encourage, or them into a dangerous explosive. It would abet, he could be held legally responsible as a be doing violence to human reason to say that party to the conspiracy-an almost ludicrously such a combination does not tend to show an self-evident proposition—that it broadly hinted intent to murder when the time comes, Joe Lewis' presence there which might be con
to the jury that if they found anything in Roy Where two brothers, in daily association, and strued to amount to more than bare presence, with the evident knowledge on the part of each then they might convict Roy Joe Lewis. The that the other is so armed, go about their dis- real vice of this instruction is that it permithonest work, such facts strongly indicate a requiring them to find that there was a conspi
ted the jury to convict said defendant without mutual understanding (conspiracy) that an racy in cxistence. To make it a question for arrest shall be thwarted by killing the officer. the jury as to whether or not a conspiracy exThe force of that evidence is increased when been ended with the words 'if you find that thero
isted, that part of the instruction should have the brothers carry their guns, as in this case, was such a conspiracy or agreement to which in such manner as to prevent, if possible, the Roy Joe Lewis was such a party.'” discovery of such weapons. Such indication That instruction contains just two propoof mutual understanding is further increased sitions: in this case by the fact that upon the crack (1) It tells the jury that there is no eviof the gun both the defendants together fled dence showing that Roy was present for the headlong from the place, slaughtering Dillon, purpose of aiding in the death of McKenna who attempted to interrupt them in their or that he did so aid. That defendant cermad getaway.
tainly has no right to complain of that part [3-6] II. Errors, if any, in the giving, or of the instruction. It is all in his favor. refusal or failure to give, instructions are (2) It tells the jury that the only ground not properly set out in the motion for a new on which Roy could be convicted was by trial. The notion only mentions the instruc- showing that he was a party to such contions generally, and does not call attention to spiracy. “Ludicrous" as it may appear to any specific proposition. As a consequence, counsel, if there was such a conspiracy, both those points are not before us for review. defendants were guilty, though one of them State v. Othick, 184 S. W. 106; State v.) at the time had no purpose or intent to aid,
and did not aid, in such killing. A con But that statute must be interpreted in spiracy makes each responsible for the acts connection with other statutes. Our Revised of the other done in the scope of such con- Statutes provide: spiracy. State y. Walker, 98 Mo. 95, 9 S. W. "Sec. 8063. Repeal of Law Not to Affect Pun616, 11 S. W. 1133; State v. Vaughan, 200 ishment for Offense Committed While in Force. Mo. 20, 98 S. W. 2. Qui facit per alium facit forfeiture incurred previous to the time when
- No offense committed, and no fine, penalty or per se.
The situation would be very differ- any statutory provision shall be repealed, shall ent if there were any evidence showing that be affected by such repeal; but the trial and such killing was over Roy's protest. If there punishment of all such offenses, and the recov
ery of such fines, penalties and forfeitures, shall had been such protest the conspiracy would be had, in all respects, as if the provisions had have been at an end, and the mutual respon- remained in force. sibility would have ceased. But the mere ab "Sec. 8064. Actions Pending, How Affected sence of evidence showing participation in civil or criminal, pending at the time any stat
by Repeal of Law.-No action, plea, prosecution, act or purpose on the part of Roy at the utory provisions shall be repealed, shall be aftime of the killing does not amount to a pro- fected by such repeal; but the same shall protest or a termination of the conspiracy.
ceed, in all respects, as if such statutory pro
visions had not been repealed, except that all  We find that counsel for defendants in such proceedings had after the time of taking the trial court taxed severely, without ex- effect of the Revised Statutes shall be conducted hausting, the judicial patience; that he was according to the provisions of such statute, and sometimes discourteous and insulting to op- thereof, so far as they are applicable."
shall be in all respects subject to the provisions posite counsel and to witnesses.
Those sections originated in the Revision of longed the cross-examinations often to a wearisome length. On the other hand, he 1835, p. 385, 88 37 and 38. was vigilant and tireless. He, after a pro- the power to abolish capital punishment as to
Undoubtedly the Legislature in 1917 had longed fight, beat the state on the question all offenses, whether committed before or aftas to whether the statements of the defendant Roy Lewis should be admitted in evi- not do so. It must be presumed that the new
er the enactment of the new law, but it did dence. It may be well said that he won the
law was enacted wit the intent tha it only point there was in the case which the should take its place alongside of other statawful facts left it possible for him to win. utes, and be construed in connection with He did not, in his motion for a new trial,
them. properly raise the points on the giving and to the effect of future repealing laws, that
The last-quoted sections provide, as refusing of instructions. But the cases cited they shall not affect the punishment for a show that other lawyers of good standing in the state have made the same mistake, and previous violation of the statute. this court has not deemed it proper to save vised Statutes. That section is, in effect, a
Appellant relies on section 4920 of our Retheir clients from the consequences of such error. The case was fairly presented to the repetition of sections 8063 and 8064, above jury by the circuit attorney and his assist- quoted, but with this proviso:
"Provided, that if the penalty or punishment ant. The trial judge guarded with vigilance for any offense be reduced or lessened by any the rights of the defendants. We are unable alteration of the law creating the offense, such to see that they could have fared any better penalty or punishment shall be assessed accordwith different counsel.
ing to the amendatory law." The judgment is affirmed.
That language certainly does not apply to
this case. Here the punishment was WHITE, C., concurs.
sessed, the sentence pronounced, and the
judgment entered before the enactment of the PER CURIAM. The foregoing opinion of new law. The appeal was pending when the ROY, C., is adopted as the opinion of the new law went into effect. Under section Court, and it is ordered that the judgment 5314 of the Statutes, the duty of this court, and sentence by the trial court be executed. on affirmance, is to direct the execution of Friday, April 5, 1918, fixed as date of execu- the judgment affirmed. tion. All the Judges concur.
 Section 5316 provides that this court
on appeal may correct any error of the trial On Motion to Modify Judgment.
court as to the time or place of imprisonment.
It was held in Ex parte Gauss, 223 Mo. 277, (10) This appellant was sentenced to death 122 S. W. 741, 135 Am. St. Rep. 517, a habeas by the trial court on January 10, 1917. The corpus case, that the court did not have in Act of April 13, 1917 (Laws 1917, p. 246), pro- that proceeding any power under the lastvides:
quoted section to correct the judgment below "Section 1. Capital Punishment Not to be as to errors other than a to the time and Imposed.–From and after the taking effect of place of imprisonment. It follows that, as this act it shall be unlawful in this state to take human life as a punishment for crime, and the sentence and judgment in this case were no court shall impose capital punishment as a prior to the going into effect of the new statpenalty for crime.
ute, they were correct and in no way errone"Sec, 2. Repealing Conflicting Laws.--All acts and parts of acts inconsistent or in conflict ous at the time of their entry, and the new with this act arc hereby repealed."
law, when interpreted in connection with the