wilkerson utah argued decided october error territory utah facts stated opinion submitted hoge williams plaintiff error defendant error justice clifford delivered opinion duly organized territories invested legislative power extends rightful subjects legislation inconsistent constitution laws rev sect congress organized territory utah september provided legislative power authority territory shall vested governor legislative assembly stat sufficient appears show prisoner named record legally charged wilful malicious premeditated murder william baxter malice aforethought indictment grand jury due form law fully set forth transcript upon arraignment pleaded guilty alleged offence pursuant order jury trial prisoner duly impanelled sworn appears jury full fair trial found verdict prisoner guilty murder first degree regular proceedings followed record also shows wilkerson utah presiding justice open sentenced prisoner follows taken hence place territory shall safely kept friday fourteenth day december next hours ten forenoon three afternoon day taken place confinement place within district publicly shot dead proceedings original jurisdiction ended prisoner sued writ error removed cause territory judgment subordinate affirmed final judgment rendered territory prisoner sued present writ error act congress providing writ territory lie criminal cases accused sentenced capital punishment convicted bigamy polygamy stat appended proceedings assignment error imputed repeated words brief counsel filed since case removed exception taken proceedings either prior sentence assignment error erred affirming judgment original jurisdiction adjudging sentencing prisoner shot death murder defined compiled laws territory unlawful killing human malice aforethought provision malice may express implied comp laws utah express malice manifested deliberate intention unlawfully take away life may implied considerable provocation circumstances attending killing show abandoned malignant heart criminal homicide perpetrated person lying wait kind wilful deliberate malicious premediated killing committed perpetration attempt perpetrate one offences therein enumerated evidencing depraved mind regardless human life murder first degree id provision also made every person guilty murder first degree shall suffer death upon recommendation jury may imprisoned hard labor penitentiary life discretion every person guilty murder second degree shall imprisoned hard labor penitentiary less five fifteen years comp laws utah duly convicted murder first degree prisoner verdict jury conceded existing law territory provides suffer death denied antecedent law territory force march march provided person shall convicted crime punishment death shall suffer death shot hung beheaded may direct convicted person may choose sess laws utah comp laws utah revised penal code went operation doubtless true repealed provision sect provides acts parts acts heretofore passed provisions act hereby repealed comp laws utah assume sect prior law repealed revised penal code follows existing law territory provides every person guilty murder first degree shall suffer death without statutory regulation mode executing sentence found following enactment revised penal code sect provides several sections code declare certain crimes punishable therein mentioned devolve duty upon authorized pass sentence determine impose punishment prescribed comp laws utah construed provision must connection enactment every person guilty murder first degree shall suffer death view fact laws territory contain specifie regulation mode executing sentence opinion assignment error shows legal ground reversing judgment authority pass sentence certainly possessed circuit courts act congress provides manner inflicting punishment death shall hanging rev sect punishments kind always directed circuit courts inflicted manner organized territories invested legislative power extends rightful subjects legislation inconsistent constitution laws virtue power legislative branch territory may define offences prescribe punishment offenders subject prohibition constitution cruel unusual punishments shall inflicted story const ed sect good reasons exist supposing congress never intended provision referred punishment death shall hanging supersede power territories legislate upon subject congressional provision part first crimes act ever passed national legislature stat different statutory regulations existed territory nearly quarter century usages army present day sentences kind may certain cases executed shooting others hanging offences various kinds defined rules articles war offender duly convicted may sentenced death penalty cases provision accused convicted shall suffer death others punishment awarded depends upon finding none cases mode putting death prescribed articles war military regulations art provides person shall sentenced suffer death except concurrence members general cases specified rules articles enacted congress rev repeated instances occur death penalty prescribed articles invariable enactment person guilty offence shall suffer death without specification mode sentence shall executed regulations army silent respect rules articles war congress made regulations regard custom war says learned writer upon subject absence statutory law determined capital punishment inflicted shooting hanging author adds effect mutiny meaning mutiny resulting loss life desertion military crime capital offence commonly punished shooting spy always hanged mutiny accompanied loss life punished manner hanging benet ed military laws says another learned author say criminal offending laws shall put death leave entirely custom war statement shooting hanging method determined custom dehart like preceding author also proceeds state spy generally hanged mutiny unaccompanied loss life punished means also concurs benet desertion disobedience orders capital crimes usually punished shooting adding mode cases either shooting hanging may declared sentence corresponding rules prevail countries following authorities afford sufficient proof simmons martial ed sect griffith military law capital punishment says author first named may either shooting hanging mutiny desertion military crime commonly shooting murder combined mutiny treason piracy accompanied wounding attempt murder hanging sentence england must accord law country regard punishment offenders exactly views expressed writer need reproduced cruel unusual punishments forbidden constitution authorities referred quite sufficient show punishment shooting mode executing death penalty crime murder first degree included category within meaning eighth amendment soldiers convicted desertion capital military offences great majority cases sentenced shot ceremony occasions given great fulness writers upon subject simmons sects dehart pp conviction civil tribunals rule common law sentence judgment must pronounced rendered prisoner tried finally condemned rule universal must annexed crime law says blackstone capital extend life offender consist generally hanged neck till dead bl com general statement commentator admits atrocious crimes circumstances terror pain disgrace sometimes superadded cases mentioned author prisoner drawn dragged place execution treason embowelled alive beheaded quartered high treason mention also made public dissection murder burning alive treason committed female history confirms truth atrocities commentator humanity nation tacit consent allowed mitigation parts judgments savored torture cruelty seldom strictly carried effect examples legislation early history parent country given annotator last edition archbold treatise arch crim pr pl ed many instances says chitty arisen ignominious painful parts punishment high treason remitted result appears king though vary sentence aggravate punishment may mitigate remit part severity chitt cr hale difficulty attend effort define exactness extent constitutional provision provides cruel unusual punishments shall inflicted safe affirm punishments torture mentioned commentator referred others line unnecessary cruelty forbidden emendment constitution cooley const lim ed wharton cr ed sect concede still means follows sentence case falls within category territory erred affirming judgment original jurisdiction antecedent enactment code went operation march statute territory passed march provided person convicted capital offence shall suffer death shot hanged beheaded may direct subject qualification therein expressed effect person condemned might option manner execution meaning qualification construed option limited modes prescribed statute exercised direction must given passing sentence nothing kind contained existing code legislature dropping provision option failed enact specific regulation mode executing death penalty instead explicit enactment every person guilty murder first degree shall suffer death upon recommendation jury may imprisoned hard labor penitentiary life discretion beyond question first clause provision applicable case jury gave recommendation recited second clause record showing verdict unconditional absolute follows sentence prisoner shall suffer death legally correct comp laws utah statute prescribed mode executing sentence duty follow unless punishment inflicted cruel unusual within meaning eighth amendment constitution pretended counsel prisoner statutory directions given prisoner duly convicted shall suffer death without statutory regulation specifically pointing mode executing command law must duty devolved upon authorized pass sentence determine mode execution impose sentence prescribed persons guilty murder first degree suffer death words territorial statute provision construed connection sect code previously referred clear made obligatory upon prescribe mode executing sentence death code imposes conviction murder first degree subject course ocnstitutional prohibition cruel unusual punishment shall inflicted modes besides hanging sometimes resorted common law common law terms require passing sentence either prescribe mode execution fix time place carrying effect frequently always done federal circuit courts common law neither mode executing prisoner time place execution necessarily embodied sentence directions regard former usually given judge calendar capital cases prepared clerk close term example case murder direction hanged neck calendar signed judge clerk constituted many cases authority officer mode execution bl com bishop cr proc ed sects bishop cr ed sect reference made cases hartung people people hartung pr id id supporting theory prisoner possessed authority prescribe mode execution entirely different opinion reasons already given judgment affirmed