Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-08-23

/ SHERlFFS OF COUNTIES WHERE
CRIME WAS coMMITTED-Gov-
! M ERNoR HAS ASKED SUPREME
COURT FOR DECISION.
4 Another chapter in the proceedings
concerning the execution Of Robert S..
Noah, convicted Of murder in the
county of Ward, and sentenced by a
jury and the judge of the district court
Of that county to be hanged by the
warden Of the penitentiary on Friday,
I October 23d, and also in the matter
Of the sentence of Joe Peltier and
1 Charles Peltisr, sentenced by the dis
trict court of Bottineau county to be
executed in the penitentiary February
5th, 1909, was brought out when Gov
ernor Burke on Saturday filed in the
supreme court request for an opin-
ion as to the constitutionality of the
statute requiringsall executions of the
death penalty to be had within the
walls of the state penitentiary.
f In the Noah case Governor Burke's
request is as follows: >...
ITO the Honorable, the Judges of the
Supreme Court of the State of North
| Dakota: 8
"On the 18th day of Aprpil, 1908, a
| jury, sworn and empanelled in the
case of the state against Robert s..
Noah, charged with murder in the
first degree, returned verdict into
court fixing the penalty for the crime
of murder in the first degree Ito
which the defendant, Robert S. Noah,
had plead guilty. at death; and
thereafter and on, the 18th day of
April, 1908, the judge of the said dis
trict court duly pronounced judgment
and sentence of death upon the said
Robert s.. Noah, by hanging by the
neck until dead, at the North Dakota
state penitentiary at Bismarck, Bur
leigh county, North Dakota, on Fri
day, October 23d, 1908, by or under
the direction of the warden of the
state penitentiary This sentence was
pronounced under section 10119. g,
Thereafter the judge of the said
district court had transcribed the evi.
dence taken in said case and duly
forwarded same to this office as pro
Wed by section 10115. II
J Section 10116 provides that the
governor may thereupon require the
opinion of the judges of the supreme
court, or any Of them, upon. the state
ments so furnished In this case there
+ is no question about the guilt of the
defendant and the record shows that
the sentence is just under all of the
circumstances; but there might be
some question about the regularity Of
. hanging the defendant in the peniten
7 tiary and outside of the jurisdiction
OF the crime Since the passage OF
the law requiring all executions in
the penitentiary, the court has rem:
dered decision in the temperance
commissioner case, ex parte Corliss
ia N. w. Rep. 962, which is appar
emily in conflict with the law requir
ing executions of death sentence al
the penitentiary, and I therefore, as
T governor of the state of North Dakota
and in accordance with section 1011e
duly request of the judges of the SUI
} preme court an opinion.
In the request for an opinion as tc
the legality of the place of execution
i in the cases of Joe and Charles Pei
!, tier, Governor Burke simply states
that s'the accompanying record of the
trial and sentence of the defendants
above named is herewith placed il
your hands with a request for al
: opinion on the regularity of the same
the questions being identical with the
questions in the case of State VS.
Robert s. Noah"
The sections Of the statute under
which this proceeding is taken have
been on the books of our state from
the time of the adoption of the frs
code Of criltinal procedure, but so fal
as is now recalled this IS the frs
! time the one requesting an opinion b!
the judges of the supreme court has
ever been used. In all cases in which
a conviction is had requiring judg
ment Of death, the Judge of the tria
court is required to transmit state
ment OF the conviction and judgmen
and OF the testimony given at the
trial, to the governor. The statute
further provides that "the governor
may thereupon require the opinion d
the judges OF the supreme court OF
any OF them, upopn the statement Sc
II furnished. !" It is under this last pro
vision that the matter has been sub
mitted to the judges Of the supreme