Page:Dakota Territory Reports Vol 4.djvu/188

 TERRITORY V. MILLER. 175

,. It grows out of the enactment by the legis- i ameodments to the Penal Code. Section 249 dares that "every person convicted of murder ,h for the same," By Section 1 of the act of assembly approved February 21, 1883. (Laws ) this section was am^ndet? to read as follows: convicted of murder shall suffer death, or im- ard labor in the territorial penitentiary for life, I of the jury." Section 2 of the same act pro- a trial of an indictment for murder, tiie jury, if fendant guilty, must designate in their verdict 1 be punished by death, or imprisonment for r, and the judgment of the court shall be in ac- rilh." The act always contains the usual gen- lause. By act approved March 13, 1885, (Laws ).) Section 2 of the act of 1883 was amended by at the close, the words, "But upon a plea of t shall determine the same." ition of the defendant's counsel upon which he id for a reversal of this judgment is as follows: y of the Penal Code was repealed by the act of that date until the amendment of March 13, no law authorizing judgment upon a plea of offense charged having been committed Janu- i act of March 13, 18H5, was, to him, ex post ■ore the defendant, by pleading guilty, was en- e immunity from punishment. The question is ef of defendant's cou-i-sel as follows: Is the law I 13, 1885, and under which judgment herein uthorizing the court to determine the grade of degree of punishment, upon a plea of guilty by d with murder, f J- pos? /of(o, as to this defond- Led that this question must be answered in the

gument tJie projwsition was broadly stated, lows: "The defendant when he committed this ntemplation of law, have said: 'I will murder