196 U.S.

Argument for Defendant in Error.

Section 8305, Rev. Codes N. Dak., 1899, provides that the day appointed on which the judgment of death shall be exe-cuted must not be less than three months after the day in which the judgment is entered, and not longer than six months thereafter," as amended by the statute of 1903, it provides that the day appointed on which the judgment of death shall be executed "must not be less than six months after the day in which the judgment is entered, and not longer than nine months thereafter."

If the imprisonment under the latter statute was to be in the county jail, as under the former, the statute would be ex post facto, because the punishment is increased by the three months' added imprisonment. Ex parte Mealey, 134 U. S. 160; People v. McNulty, 28 Pac. Rep. (Cal.) 816.

Section 3 of the act of 1903 provides that persons sentenced to death shall, within ten days thereafter, be conveyed to the North Dakota penitentiary, "and securely kept in close confinement until the day designated for the execution.

Imprisonment in the penitentiary as compared with imprisonment in the county jail is an increased and greater punishment. Case supra.

Mr. Emerson H. Smith, with whom Mr. W. H. Barnett was on the brief, for defendant in error:

The statute of 1903 is not void as ex post facto; it is an additional bulwark in favor of personal security. Calder v. Bull, 3 Dall. 386. For definitions of ex post facto laws in which increase of punishment is an element, see United States v. Hall, 26 Fed. Cas. 84; S. C., 6 Cranch, 171; King v. Missouri, 107 U. S. 221; Hopt v. Utah, 110 U. S. 574; In re Medley, 134 U. S. 160; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; State v. Hayes, 140 N. Y. 484. The act is in mitigation of the death penalty any change in which, short of death itself, is considered a mitigation, and postponement of the time of its infliction is also a mitigation. Commonwealth v. Gardner, 11 Gray, 438; Commonwealth v. Wyman, 12 Cush. 239;

Cooley on Const. Lim. § 272; In re Tyson, 13 Colorado, 487. If any shortening of life is to the convict's disadvantage any extension of life must be considered to his advantage. Territory v. Miller, 4 Dakota, 173, 181; State v. Rooney, 95 N. W. Rep. (N. Dak.) 517.

The fact that the convict is kept in the penitentiary in close confinement instead of in the county jail does not increase the severity of the punishment. The word "close" is not necessarily synonymous with "solitary." If the statute does not require solitary imprisonment there is no presumption that the officers of the penitentiary will make the confinement solitary. Holden v. State, 137 U. S. 483.

The fact that the execution is to be at the penitentiary instead of in the county in which the conviction was had does not make the statute ex post facto. In re Tyson, 30 Colorado, 487.

Whether the change in this law works to the advantage or disadvantage of the convict, i. e., which is the severer punishment, imprisonment for three months longer before hanging, under the new law, or death by hanging three months carlier, under the old law, is a question of law for the court to decide. People v. Hayes, 140 N. Y. 488, and other cases cited in 95 N. W. Rep. 518. Hartung v. People, 22 N. Y. 695, distinguished.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

It appears from the statement of the case that the statute in force when the sentence of death was pronounced differed from those in force when the crime was committed and when the verdict was rendered, in these particulars:

1. By the later law, close confinement in the penitentiary for not less than six months and not more than nine months, after judgment and before execution, was substituted for confinement in the county jail for not less than three months nor more than six months after judgment and before execution.

2. By the later law, hanging, within an inclosure at the penitentiary by the warden or his deputy, was substituted for hanging by the sheriff within the yard of the jail of the county in which the conviction occurred.

We are of opinion that in the particulars just mentioned the statute of 1903 is not repugnant to the constitutional provision declaring that no State shall pass an ex post facto law. It did not create a new offense nor aggravate or increase the enormity of the crime for the commission of which the accused was convicted, nor require the infliction upon the accused of any greater or more severe punishment than was prescribed by law at the time of the commission of the offense. The changes, looked at in the light of reason and common sense and applied to the present case, are to be taken as favorable rather than as unfavorable to him. It may be sometimes difficult to say whether particular changes in the law are or are not in mitigation of the punishment for crimes previously committed. But it must be taken that there is such mitigation when by the later law there is an enlargement of the period of confinement prior to the actual execution of the criminal by hanging. The giving, by the later statute, of three months' additional time to live, after the rendition of judgment, was clearly to his advantage, for the court must assume that every rational person desires to live as long as he may. If the shortening of the time of confinement, whether in the county jail or in the penitentiary before execution, would have increased, as undoubtedly it would have increased, the punishment to the disadvantage of a criminal sentenced to be hung, the enlargement of such time must be deemed a change for his benefit. So that a statute which mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as ex post facto with reference to that crime. Calder v. Ball, 3 Dall. 386, 391, Chase, J.; Story's Const. § 1345'; Cooley's Const. Lim. *267; Commonwealth v. Gardner, 11 Gray, 438, 443; 1 Bishop's Crim. Law, 280. Besides, the extension of the time to live, given by the later law, increased the opportunity of the ac

cused to obtain a pardon or commutation from the Governor of the State before his execution.

Nor was the punishment, in any substantial sense, increased or made more severe by substituting close confinement in the penitentiary prior to execution for confinement in the county jail. It is contended that "close confinement" means "solitary confinement," and Medley's Case, 134 U. S. 160, is cited in support of the contention that the new law increased the punishment to the disadvantage of the accused. We do not think that the two phrases import the same kind of punishment. Although solitary confinement may involve close confinement, a criminal could be kept in close confinement without being subjected to solitary confinement. It cannot be supposed that any criminal would be subjected to solitary confinement when the mandate of the law was simply to keep him in close confinement.

Again, it is said that the law in force when the crime was committed only required confinement, whereas the later statute required close confinement. But this difference of phraseology is not material. "Confinement" and "close confinement" equally mean such custody, and only such custody, as will safely secure the production of the body of the prisoner on the day appointed for his execution.

The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the State, is of no practical consequence to the criminal. On such a matter he is not entitled to be heard.

The views we have expressed are in accord with those announced by the Supreme Court of North Dakota. State v. Rooney, 12 N. Dak. 144, 152.

We are of opinion that the law of 1903 did not alter the

situation to the material disadvantage of the criminal, and, therefore, was not ex post facto when applied to his case in the particulars mentioned.

Judgment affirmed.

UNITED STATES v. CROSLEY.

APPEAL FROM THE COURT OF CLAIMS.

No. 96. Submitted December 9, 1904.—Decided January 23, 1905.

While the court may not add to or take from the terms of a statute, the main purpose of construction is to give effect to the legislative intent as expressed in the act under consideration.

The Navy Personnel Act undertook to equalize the pay of naval officers with those officers of the Army of equal rank as to duties properly required of a naval officer, and it has no operation to provide pay for services peculiar to the Army.

A lieutenant in the Navy serving as aid to a rear-admiral is entitled to the additional two hundred dollars allowed to a lieutenant serving as aid to a major-general under § 1261, Rev. Stat., but he is not entitled to the mounted pay allowed to the army lieutenant serving as such aid under 1301, Army Regulations.

THIS case was tried in the Court of Claims upon a petition filed to recover pay for services in the United States Navy, rendered by the defendant in error, while he was a lieutenant of the junior grade and acting as aid to Rear-Admiral Watson, then serving with the rank of rear-admiral in the nine higher numbers of that grade, and, under section 1466 of the Revised Statutes, entitled to rank with a major-general in the Army. The claimant alleges that he should have received from the first day of July, 1899, to the eighth day of September,