Page:North Dakota Law Review Vol. 2 No. 1 (1925).pdf/7

Rh boys, of whom 9,956, or about 45%, were earning their way in whole or substantial part. Moreover, in practically every section of Missouri there is either a University, a Normal School, a College or a Junior College, where a student can get two years of college work; and last year there were 10,083 boys in attendance at these institutions throughout the State, of whom 4,037, or 40%, were earning their way in whole or substantial part."

The Territory of Dakota enacted the following statute in 1883: "Every person convicted of murder shall suffer death or imprisonment at hard labor in the territorial penitentiary for life, at the discretion of the jury.

"Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether 'he shall be punished by death, or imprisonment for life at hard labor, and the judgment of the court shal be in accordance therewith."

In 1885 the Territorial Legislature further amended the law by providing that "upon plea of guilty, the court shall determine the same." This law became effective on March 13th, 1885.

In January, 1885, one Miller killed his employer's wife and child. The defendant entered a plea of guilty. His counsel contended that the law of 1885 was, as to defendant, ex post facto, and that there was no provision of law for trial by jury upon a plea of guilty; that by pleading guilty, therefore, defendant was entitled to absolute immunity from punishment. This was part of counsel's argument:

"The defendant, when he committed this act might, in contemplation of law, have said: 'I will murder this woman, and may do, so with perfect safety, because, if I am indicted for it, I will plead guilty, and in that case no penalty can be inflicted.' "

The Court, however, impaneled a jury, had the case presented, and upon a verdict of the death penalty by the jury, sentenced the defendant. The matter was taken to the Territorial Supreme Court, the conviction and sentence sustained, and the Court took occasion to make the following statement in its opinion:

"We cannot, however, refrain from pointing out, what is so well illustrated in this case, how much labor and anxiety might be avoided by a little more care on the part of the framers of statutes-a little more attention to the provisions of existing laws, and to the terms and phraseology of those by which it is sought to modify them. It is greatly to be regretted that the rule which imputes to the Legislature the design which it has expressed in words is founded rather in necessity than in fact.