by John Marshall Harlan

“ When any person is convicted of any crime for which sentence of death is a warded against him, the clerk of the court, as soon as may be, shall make out and deliver to the sheriff of the county a certified copy of the whole record of the conviction and sentence; and the sheriff shall forthwith transmit the same to the governor; and the sentence of death shall not be executed upon such convict until a warrant is issued by the governor, under the seal of the state, with a copy of the record thereto annexed, commanding the sheriff to cause the execution to be done ”

“ Whenever, upon the trial of any person upon an indictment for murder in the first degree, the jury shall have agreed upon a verdict of guilty of such offense, such jury may also determine in the same manner that the person so convicted shall be punished by death, and, if they so determine, shall render their verdict accordingly; and, in such case, the person so convicted shall be punished by death, as prescribed by section two of chapter ninety-four of the General Statutes for the punishment of murder in the first degree.' Gen. ”

“ It was so interpreted by the state court; for, although Medley's crime was committed before the passage of the Colorado statute under which he was tried, the imposition of solitary confinement was part ofth e very judgment and sentence against him. Thus interpreted, this court held the Colorado statute to be a legislative declaration that it was not fit that the existing law remain in force, and, consequently, that it abrogated all former laws covering the same subject, and was ex post facto when applied to prior offenses. ”