requested the judge to give certain instructions to the jury, including this one: "In case the jury find the prisoner guilty of murder, they are instructed that they may qualify their verdict by the words 'without capital punishment,' no matter what the evidence may be." The judge declined to give that instruction, and, after defining murder and manslaughter, and the right of self-defense, instructed the jury as follows: "If you should reach the conclusion that your verdict should be 'guilty as indicted,' it is your right, under a recent act of Congress, passed in January, 1897, to add to this verdict 'without capital punishment.' The jury have this power in any given case. The court cannot control your act at all. The court can only advise you as to the law. The responsibility is entirely with you, and you can render such verdict as you please. I mean that you have the power to do it. You can render a verdict of not guilty in a case where the evidence clearly shows guilt. Of course such action on the part of the jury would be a direct violation of their oaths. If the jury believe a man was guilty, and, simply out of pity or sympathy or mercy, rendered a verdict of not guilty, they would violate their oaths. be no qualification. It must be the unanimous conclusion of the jury. The question for you to ask yourself is this: Are the eircumstances in this case such, if you reach the conclusion that the defendant is guilty as indicted, as to require you, upon your oaths, to interfere with the penalty fixed by law?" Smith was indicted for the murder with a hatchet on November 15, 1897, of the wife of another man. At the trial, the government introduced circumstantial evidence tending to support the indictment; and also evidence that the defendant hired a room in the dwelling house of the husband and wife; that some time before the homicide, the two [309] men had a quarrel about her, and both were arrested, convicted, and imprisoned charges of assault; that the defendant at one time threatened to kill her if she ever resumed living with her husband; and that the defendant was quarreling with her just before her death. on The judge instructed the jury as follows: "Under a recent statute the jury are authorized, in returning a verdict of guilty of murder, if the evidence justifies them on their consciences in so doing, to qualify the verdict by the addition of the words 'without capital punishment.' "I have no doubt that this act of Congress was intended to serve some useful purpose. The penalty for murder has not been disturbed by this act of Congress; it is fixed by law; the jury neither make nor unmake (808]it. Doubtless the intention of the legislature was this: that if, in a case in which the jury reach the conclusion that the party on trial is guilty of murder, circumstances are shown by the evidence that are of a palliating nature, they may give the defendant the benefit of those palliating circumstances, and say in their verdict 'without capital punishment.' If, however, the jury believe that there are no palliating circumstances, it is their duty not to add anything, but to leave the penalty as it stands. It may be that a provision of this kind in the law was in-alty of the law is unchanged." tended to apply to a case somewhat like that suggested by the district attorney. Suppose a man knowing that his wife had been in improper relations with another man, and roused to anger by such knowledge, but postponing from time to time, while he meets this man, the execution of his vengeance upon him, he finally concludes to and does kill him, that would be murder, a clear case of murder under the law; but those circumstances might be such as would convince the jury that the extreme penalty of the law ought not to be inflicted. There may be other cases. I simply give that as an illustration. But the object of this penalty, gentleman of the jury, is to protect society; and the jury should not interfere with it under any circumstances, unless the circumstances are such as to satisfy them that this provision should be added to the verdict. "The law inflicting the penalty of death for murder has not been repealed. That is the penalty which the law fixes." "The legislature probably intended that in cases where there were some mitigating or palliating circumstances, where it was apparent from the evidence that the crime was not the most heinous crime of murder, or where there was doubt whether the circumstances indicated premeditation, perhaps, that the jury might qualify their verdict by adding the words without capital punishment." But it was evidently contemplated by Congress that there would be cases in which juries would not be justified in so qualifying their verdicts, and therefore the law remains, and unless the verdict is so qualified the pen "If you reach the conclusion of guilt, 'guilty as indicted,' it is your duty to return that verdict; and, unless you unanimously agree that the verdict should be qualified as the statute provides you may qualify it, there can "If you find that the defendant is guilty, you will vindicate the law and uphold it by returning a verdict of 'guilty as indicted.' Whether you qualify it or not is a matter for you to determine. If you conclude to qualify it, it must be by the unanimous decision of the twelve jurors." In each case, the defendant excepted to the instructions of the court concerning the act of Congress of January 15, 1897, and, after verdict of "guilty as indicted," and sentence of death, appealed to the court of appeals of the District of Columbia, which affirmed the judgment, Justice Shepard dissenting. Writs of certiorari were thereupon granted by this court under the act of Congress of March 3. 1897, chap. 390. 29 Stat. at L. 692. 171 U. S. 690. Messrs. George Kearney and Charles H. Messrs. Samuel D. Truitt and Tracy L. 1898. United States in and for the District of Co- | for life, at the discretion of the court; and [310] *Mr. Justice Gray, after stating the cases, By section 5339 of the Revised Statutes, re-enacting earlier acts of Congress, "every person who commits murder" "within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States," "shall suffer death." The act of January 15, 1897, chap. 29, entitled "An Act to Reduce the Cases in Which the Penalty of Death May be Inflicted," Provides, in section 1, that in all cases in which the accused is found guilty of the crime of murder under section 5339 of the Revised Statutes "the jury may qualify their verdict by adding thereto 'without capital punishment;' and whenever the jury shall return a verdict qualified as aforesaid the person convicted shall be sentenced to imprisonment at hard labor for life." 29 Stat. at L. 487. The question presented and argued in each of the three cases now before the court is of the construction and effect of this act of Congress. The hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death. That end has been generally attained in one of two ways: First. In some states and territories, statutes have been passed establishing degrees [311]of the crime of murder, requiring the degree of murder to be found by the jury, and providing that the courts shall pass sentence of death in those cases only in which the jury return a verdict of guilty of murder in the first degree, and sentence of imprisonment when the verdict is guilty of murder in the lesser degree. See Hopt v. Utah, 104 U. S. 631 [26: 873], and 110 U. S. 574 [28: 262] Davis v. Utah, 151 U. S. 262, 267-269 [38: 153, 156]. every person guilty of murder in the second degree shall be imprisoned at hard labor in the penitentiary for not less than âve nor Compiled Laws of more than fifteen years.' Utah of 1876, §§ 1919, 1920, pp. 585, 586. In the leading case of Hopt v. Utah this court held that evidence that the accused was in a state of voluntary intoxication at the time of the killing (which would not have been competent in defense of an indictment for murder at common law) was competent for the consideration of the jury upon the question whether he was in such a condition as to be capable of deliberate premeditation, constituting murder in the first degree under the statute. 104 U. S. 631 [26: 873]. Upon a second trial of the same case, the territorial court, in charging the jury, having used this language: "That an atrocious and dastardly murder has been committed by some person is *apparent, but in your deliberations you [312] should be careful not to be influenced by any feeling," the conviction was again reversed by this court, saying that this observation was naturally regarded by the jury as an instruction that the offense, by whomsoever committed, was murder in the first degree; whereas it was for the jury, having been informed as to what was murder, by the laws of Utah, to say whether the facts made a case of murder in the first degree or murder in the second degree. 110 U. S. 582 [26: 266]. And in Calton v. Utah, 130 U. S. 83 [32: 870], a sentence of death upon a conviction of murder in the first degree was reversed, because the judge had not called the attention of the jury to their right, under the statute, to recommend imprisonment for life at hard labor in the penitentiary in place of the punishment of death; and without a recommendation of the jury to that effect the court could impose no other punishment than death. While those decisions have no direct bearing upon the question now in judgment, they are important as illustrating the steadfastness with which the full and free exercise by the jury of powers newly conferred upon them by statute in this matter has been upheld and guarded by this court as against the possible effect of any restriction or omission in the rulings and instructions of the judge presiding at the trial. Second. The difficulty of laying down exact and satisfactory definitions of degrees in the crime of murder, applicable to all possible circumstances, has led other legislatures to prefer the more simple and flexible rule of conferring upon the jury, in every case of murder, the right of deciding whether it shall be punished by death or by imprisonment. This method has been followed by Congress in the act of 1897. For instance, the statutes of the territory of Utah contained the following provisions: "Every murder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any other human being, other than him who is killed; or perpetrated by The act of Congress confers this right upon any act greatly dangerous to the lives of others, and evincing a depraved mind regard- the jury in broad and unlimited terms, by enless of human life, is murder in the first de- acting that "in all cases in which the accused gree; and any other homicide, committed un-is found guilty of the crime of murder," the der such circumstances as would have consti- jury may qualify their verdict by adding tuted murder at common law, is murder in the thereto 'without capital punishment;' second degree." "Every person guilty of mur- that, "whenever the jury shall return a verder in the first degree shall suffer death, or, dict qualified as aforesaid," the sentence shall upon the recommendation of the jury, may be be to imprisonment at hard labor for life. imprisoned at hard labor in the penitentiary "and The right to qualify a verdict of guilty, by 459 [813]adding the words "without capital punishment," is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness, or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone. BELLINGHAM BAY & BRITISH COLUM- v. CITY OF NEW WHATCOM. (See S. C. Reporter's ed. 314-320.) Federal 1. 2. 3. An allegation in an answer, that the notice of a reassessment was insufficient, and that by reason thereof defendant's property was sought to be taken without due process of law and in conflict with the Federal Constitution, raises a Federal question. Only in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time. A notice of reassessment for a street improvement, allowing ten days only for objections, is not insufficient for due process of law because the time is so short,-especially in case of a property owner doing business in the city, and when there is nothing to sug gest any injustice. [No. 96.] The decisions in the highest courts of the Argued December 16, 1898. Decided Janu several states under similar statutes are not entirely harmonious, but the general current be in accord with ary 3, 1899. ERROR Supreme Court of of opinion. appears to Shields, I wou. I State of Washington to review a decree of 395; State v. Melvin, 11 La. Ann. 535; Hill v. State, 72 Ga. 131; Cyrus v. State [102 Ga. 616] 29 S. E. 917; Walton v. State, 57 Miss. 533; Spain v. State, 59 Miss. 19; People v. Bawden, 90 Cal. 195; People v. Kamaunu, 110 Cal. 609. The instructions of the judge to the jury, in each of the three cases now before this court, clearly gave the jury to understand that the act of Congress did not intend or authorize the jury to qualify their verdict by the addition of the words "without capital punishment," unless mitigating or palliating circumstances were proved. This court is of opinion that these instructions were erroneous in matter of law, as undertaking to control the discretionary power vested by Congress in the jury, and as attributing to Congress an intention unwarranted (814]either by the express *words or by the apparent purpose of the statute; and therefore in each of these cases Judgment must be reversed, and the case remanded to the Court of Appeals with directions to reverse the judgment of the Supreme Court of the District of Columbia, and to order a new trial. that court affirming the decree of the Supe- See same case below, 16 Wash. 131. Statement by Mr. Justice Brewer: Mr. Justice Brewer and Mr. Justice Mc- to obtain decrees foreclosing the liens created 460 i the superior court entered decrees anrilling "Sec. 4. Upon receiving the said assessment sessment. of land benefited by the improvement on Elk street, hereinbefore described, and directed the various officers of the city to take the steps required by the general ordinance of March 18. These steps were all taken in conformity to such ordinance, and on Auguet 7, 1895, a further ordinance was passed reciting what had been done, approving it and confirming the reassessment. The recital in that ordinance in respect to notice was as follows: "Whereas, said city council did on the 8th day of July, 1895, order said assessment roll filed in the office of the city *clerk, and fixed [317] Monday, July 22d, 1895, at 7:30 P. M., as a time at which they would hear, consider, and determine any and all objections to the regularity of the proceedings in making such assessments, or to the amount to be assessed upon any block, lot, or tract of land for said improvements; and "Whereas, notice of such hearing was duly published in the official paper of the city of New Whatcom, to wit: in the Daily Reveille, in three consecutive issues thereof, the same being the issues of July 9th, 10th, and 11th, 1895." The Bellingham Bay & British Columbia Railroad Company was a private corporation organized under the laws of the state of California, but authorized to do business in the state of Washington, and having its principal office in the city of New Whatcom. It was the owner of certain property abutting upon the Elk street improvement, and which by the proceedings of the city council was held benefited by such improvement and charged with a portion of the cost. Failing to pay this charge, the city of New Whatcom instituted suit in the superior court of Whatcom county to foreclose the liens created by the reassessment. A decree was rendered in favor of the city, which, on appeal, was affirmed by the supreme court on December 8, 1896, 16 Wash. 131, whereupon this writ of error was sued out. [316] Sec. 5. At the time appointed for hearing objections to such assessment the council shall hear and determine all objections which have been filed by any party interested, to the regularity of the proceedings in making such reassessment and to the correctness of the amount of such reassessment, or of the amount levied on any particular lot or parcel of land; and the counsel shall have the power to adjourn such hearing from time to time, and shall have power, in their discretion, to revise, correct, confirm, or set aside, and to order that such assessment be made de novo, and such council shall pass an Messrs. L. T. Michener, W. W. Dudley, order approving and confirming said pro-and John B. Allen for plaintiff in error. ceedings and said reassessment as corrected No counsel for defendant in error. by them, and their decision and order shall be a final determination of the regularity, validity, and correctness of said reassession of the court: ment, to the amount thereof, levied on each lot or parcel of land. If the council of any such city consists of two houses the hearing shall be had before a joint session, but the ordinance approving and confirming the reassessment shall be passed in the same manner as other ordinances." "Sec. 8. Any person who has filed objections to such new assessment or reassessment, as hereinbefore provided, shall have the right to appeal to the superior court of this state and county in which such city or town may be situated." On March 18, 1895, the city council passed an ordinance prescribing the mode of procedure for collecting the cost of a local reassessment upon the property benefited there by. On.June 10, 1895, it ordered a new assessment upon the blocks, lots, and parcels *Mr. Justice Brewer delivered the opin-[317] By its answer the defendant raised a Federal question, inasmuch as it alleged that the notice of the reassessment was insufficient, and specifically that by reason thereof its property was sought to be taken without due process of law and in conflict with the terms of the Fourteenth Amendment to the Constitution. This court, therefore, has jurisdiction of the case. *That notice of reassessment was essential[318] is not questioned. (Davidson v. New Or leans, 96 U. S. 97, 105 [24: 616, 620]; Hagar v. Reclamation District No. 108, 111 U. S. 701, 710 [28: 569, 573]; Cooley, Taxation, 266), and that constructive notice by publi cation may be sufficient is conceded (Lent v. Tillson, 140 U. S. 316, 328 [35: 419, 426]; Paulsen v. Portland, 149 U.S. 30 [37: 637]); but the contention is that the notice, which was provided for, and which was in fact "While we concede in the first instance to the legislature the authority to prescribe the time of the notice, we assert that this is not an absolute authority relieved from judicial review. The shortening of the time and the limiting of opportunity to be informed through constructive notice may be such as to render the notice unavailing for the purpose for which notice is designed. If that be the case it is not notice. To prescribe that within ten days after the contingency of a three days' publication the landowner is left without redress for any kind of burden that may be placed upon his property in the way of taxation amounts to a taking of property without due process of law. Under the pretense of prescribing and regulating notice, all practical notice cannot be taken away. There is a limit to legislative power in shortening the time of notice, and if that limit is transcended the courts will hold it void." and difficult are the questions involved? Re- vious assessment had been made for the cost And there is nothing in the case of this plaintiff in error to suggest any injustice. It, though a corporation of the state of California, was doing business in the state of Washington, and having its principal office in the city of Whatcom. In other words, it was domiciled in the city in which the improvement was made. The improvement made on the street, on which its lots abutted, consisted in grading, planking, and sidewalking. It is, to say the least, highly improbable that it could have been ignorant of the We are unable to concur in these views. fact that they were made. It must have It may be that the authority of the legisla-known also that such improvements have to ture to prescribe the length of notice is not be paid for, and that the ordinary method of absolute and beyond review, but it is certain that only in a clear case will a notice au- payment is by local *assessment on the prop-[320] thorized by the legislature be set aside as erty benefited-the abutting property being wholly ineffectual on account of the short-primarily the property benefited. A preness of the time. The purpose of notice is to secure to the owner the opportunity to protect his property from the lien of the proposed tax or some part thereof. In order to be effectual it should be so full and clear as to disclose to persons of ordinary intelligence in a general way what is proposed. If service is made only by publication, that publication must be of such a character as to create a reasonable presumption that the owner, if present and taking ordinary care of his property, will receive the information of [319]what is proposed and when and where he may be heard. And the time and place must be such that with reasonable effort he will be enabled to attend and present his objections. Here no question is made of the form of the notice. It was published in three success ive issues of the official paper of the city. So the statute required. What more appropriate way of publishing the action of a city than in its official paper? Where else would one interested more naturally look for information? And is not a repetition in three successive issues of the paper sufficient? How seldom is more than that required! Indeed, we do not understand that any challenge is made of the sufficiency of the publication. But when that is made and is sufficient, notice is given. The fact that the owner after being notified is required to appear and file his objections within ten days, is thus the sole ground of complaint. But how many days can the courts fix as a minimum? How much time can be adjudged necessary as matter of law for preparing and filing objections? How many and intricate 462 In view, therefore, of the character of the The judgment of the Supreme Court of the 172 U. S. |