
    Ex parte JOHNSON.
    (No. 8531.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1924.)
    1. Homicide <s=314 — Words “by hanging” in verdict surplusage.
    The words “by hanging” in the verdict in a murder case, finding defendant guilty and assessing his punishment at death, are surplusage, and do not vitiate the verdict;, the jury’s province being merely to decide on guilt, and whether punishment be by death or confinement.
    2. Constitutional law c&wkey;203 — Change of mode of execution from hanging to electrocution not ex post facto legislation.
    The change by Acts 38th Leg. 2d Called Sess. (1923)' c. 51, in mode of execution from hanging to electrocution, though after verdict of guilty and before sentence, does not offend against the inhibition of the Constitution against ex post facto legislation.
    Original application by Melvin Johnson for discharge by way of habeas corpus.
    Application refused.
    E. W. Love, of Cleveland, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Upon the trial of Melvin Johnson for murder, the jury returned a verdict reading thus:

“We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at death by hanging until dead.”

Upon his appeal, the judgment was affirmed on the 4th day of April, 1923, and mandate issued on the 22d day of June, 1923, and on the 23d day of August, 1923, the date of his execution was fixed by sentence duly entered in the district court of Liberty county.

This application for discharge by way of writ of habeas corpus is upon the ground that the verdict declares that his death shall be by hanging, while the sentence declares that it shall be by electrocution. At the time of his trial, under the law of this state, the mode of execution where the death penalty was ordered was by hanging. By act of the Thirty-Eighth Legislature, Second Called Session, the mode of execution was changed to that of electrocution. See chapter 51, Acts 38th Leg. 2d Called Sess.

The province of the jury was • to decide upon the guilt of the applicant, and whether he should be punished at death or by confinement in the penitentiary. That part of the verdict using the words “by hanging until dead” is surplusage, and in no sense vitiated the verdict. The method of execution was not within the scope of the jury’s au- • thority, but at the time the verdict was rendered was fixed by law. The change of the mode of execution from hanging to electrocution was within the scope of the legislative power, ancl did not offend against the constitutional provision prohibiting ex post facto legislation. Such is the view expressed by the Supreme Court of the United States and the courts in several of the states.

In Malloy’s Case, 237 U. S. ISO, 35 Sup. Ct. 507, 59 L. Ed. 905, the question before the court was whether Malloy, who had committed the offense of murder in 1910, at which time the mode of execution was by hanging, and who was convicted in 1912, when the mode of execution was by electrocution, should be discharged. In the opinion rendered in 1915, the Supreme Court of the United States, after reviewing some previous announcements by that court, used this language:

“Impressed with the serious objection to executions by hanging, and hopeful that means might be found for taking life ‘in a less barbarous manner,’ the Governor of New York brought the subject to the attention of the Legislature in 1885. A commission thereafter appointed to ascertain the most humane and practical method of inflicting the death sentence reported in favor of electrocution. This was adopted by the statute of 1888, and, with the approval of the courts, has been in continuous use since that time. Re Kemmler, 136 U. S. 436, 34 L. Ed. 519, 10 Sup. Ct. Rep. 930, 119 N. Y. 569, 7 L. R. A. 715, 16 Am. St. Rep. 859, 24 N. E. 6.
“Influenced by the results in New York, eleven other states have adopted the same mode for inflicting death in capital cases; and, as is commonly known, this result is the consequent of a well-grounded belief that electrocution is less painful and more humane than hanging. Storti v. Com., 178 Mass. 549, 553, 52 L. R. A. 520, 60 N. E. 210; State v. Tomassi, 75 N. J. L. 739, 747, 69 Atl. 214.
“The statute under consideration did not change the penalty — death—for murder, but only the mode of producing this, together with' certain nonessential details in respect of surroundings. The punishment was not increased, and some of the odious features incident to the old method were abated.”

Tbe application is refused. 
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     