The Pacific commercial advertiser., 1900-10-19

permitted decide whether the penalty of murder shall
be death Imprisonment for life Estate Hockt 20 Ia 442
Ricc State, Ind 1872; People Welch, 40 CAL 174,
whether in of grand larceny shall be death mPrson
for less than than years people
Lfcld CAL 1855; 40 Cal 1sC), the jury
the precise of the fine imprisonment both within
the prescribed limits (Cook Greene CIR. a 56 State
McQmag % No. 39 Ourstatue relating libel prescribs
limit in each namely for not more than
three months fine exceeding three hundred dollars IN one
case and imprisonment for than fine not
exceeding thousand dollars in the other case
The question therefore of construction The law to
constutonaty we'll settled The legislature leave it
tc the jury define the oenses may leave it them de-
termne either the precise penalty the general limits within
which the precise penalty be fixed by the court The
ton is which belongs The word degree
il of doubtful meaning 1t grade But it may
grade distinguished from other grades by the abb
of particular elements in which it means
separate ofense, may grade in
nsiy aggavaon without requiring the absence
of particular element distinguish from other grades In
the the legislature specifies the distinguishing element
elements and doing practically really defines many
different oenses cmes the other defines crime
and may leave the say within certain limits
what the penalty shall be- according the aggravaon of the
1t mmatera in what words may undertake do this
long it does it. The substance, the fom is the i'm
poant thing If the legislature defines oense and then
leaves it to the jury say whether the penalty shall be
less mmat a whether speaks of the oense being
in degree the other according the jury nd whether
provides that the jury may find by expressly naming the
of the penalty by saying general terms that it hal
be the larger the smaller penalty by saying that the
less aggravated deserving the larger
smaller penalty of higher lower degree In
the legislature may easily distinguishing elements
and define different oense other cases. in the Of
libel it not do except in very limited incomplete
unsatisfactory In the latter class of feel that the
only reasonably practical way either leave the jury
appropriate way whether the less aggravated and
guide limit the court to extent the precise amount
of the penalty 1t would be perfectly competent the of
libel to permit the many words whether the
penalty should be imprisonment for than three months
fine exceeding three hundred dollars imprisonment for
than year exceeding thousand dol
lars 1t would also be perfectly competent for the legislature
to permit the to do this in substance by permitting in form
find that the oense less aggravated that
of higher lower first second degree The only
question whether that what intended well esab
lshed rule that should be construed possible
be constitutional and operative and carry the nen
ton of the awmakng body In this possible
the make it effective and CONSTITUTIONAL
namely by constituting it attempt give to the jury the
power certain extent, of determining the of the
penalty and making the punishment fit the crime according
the latter deserving of greater less punishment in the opinion
Of the jury The contempates he oense of making
also that of publishing bel that is oense of making
also ofense of publishing be and then provides that
each of these shall be of degrees distinguishes between
the oenses by difference in the elements which constitute
em distinguishes between the degrees only by difference
in the punishment There elements required constitute
the oense degree that also required constitute
tic oense in the other. The difference the
dicae merely degree kind of crime the presence
Or absence of any particular element
1t true that the accused has right informed clearly
what he is meet but in opinion true contended
that under this impossible inform him because
the constitute either the degrees
of making libel either of the degrees of publishing libel
The same facts not only might but do constitute each of the
degrees of either oense The so clearly indicates If
So the defendant must necessarily know what he if the
oense without respect to the degrees fully described
must be under general rules There single element left
to the court jury dne but in this every where
the precise penalty prescribed by the legislature the de-
f,ndant must know that after every element of the oen
established by the prosecution justify convictions
is still left large field of inquiry the aggravaton of the