to the benefit of the appellee. The contract between the son and the appellant, therefore, can not be considered as the basis of this action.

To sustain the action it must appear that the appellee has been injured in his person, property or reputation by the negligence of the appellant. It can not be pretended that in the latter two he has been injured in any respect, and the inquiry remains, has he been injured in his person in any respect as will entitle him to damages; to such pecuniary satisfaction as under the settled rules of law a plaintiff may obtain through an action?

No deprivation of any absolute right of person has been stated, which would entitle the appellee at least to nominal damages, and we have the naked question: Can a person who has not shown himself deprived of any absolute right for which damages, nominal at least, would be given, maintain an action for an injury to his feelings alone, which results solely from a breach of a contract to which he is not a privy, made with and for the benefit of another; or from a tort through which such other person receives an injury, personal to himself, for which damages may be given. Recognizing the fact that by reason of the public character of the employment which the appellant has assumed, a duty existed upon its part to deliver the message to the appellee without unnecessary delay, and that a failure to perform such duty, if attended with damages to the appellee, gives sufficient ground for an action, even in the absence of a contract to which he is a party, it becomes necessary to inquire whether an injury to the feelings of the appellee, unconnected with some other ground for damage, is sufficient to maintain this action.

An act for which the law does not give damages, at least nominal, can not in a legal sense be called an injury, and it has therefore been truly said "it may be laid down as a true proposition, that base negligence, unproductive of damages to another, will not give a right of action. Negligence causing damage will do so."

In many cases where a bodily injury has been inflicted, even by negligence, the mental suffering resulting therefrom and necessarily incident thereto has been considered an element of damages, but we know of no case, unless it be the one hereafter to be referred to, in which it has been held sufficient in itself to maintain an action for damages, in the absence of some statute affecting the question.

In case of the death of an adult child, by the negligence of a corporation or person, who had assumed some duty to it which was violated by such neglect, in the absence of a statute authorizing it, no action could be maintained for such injury to the feelings of a parent, or other relative, and yet but few causes could be productive of deeper mental distress, and even in action under statutes permitting recovery in cases where death has resulted, no recovery can be had for mental suffering, unless the statute permits it in

terms or authorizes the recovery of exemplary damages. Field on Damages, 630.

This is upon the theory that no cause of action accrues to the parent, or other relative, unless given by the statute, and when thus given it will not extend to embrace elements of damages not given by the statute. The effect of the acts of the several States, and of the English acts, authorizing recovery, for the death of persons, is to remove the technical difficulty at common law, interposed to the maintenances of actions in such cases; and they certainly do not withdraw from any one any right which could have been asserted, as the law formerly stood, for an injury to the person bringing an action, grounded upon any reason personal to himself, and other than the pecuniary loss suffered by death.

Yet in actions under statutes of the several States, and under the English statutes, it has been uniformly held that the injury to the feelings of the person or persons entitled to maintain such action was not an element of damage which. could be considered. This could not well be held, if it had ever been true, that an action could be maintained for an injury to feelings alone, which is a matter personal to the aggrieved party, for which an action would not have been denied upon the technical ground upon which recovery for the loss of a life was denied.

In cases of seduction no action is maintainable by the parent, guardian or master, upon the ground of injury to the feelings or mental distress, but the loss of services is made the basis of the suit, and if there was no such loss there could be no recovery, however great the mental suffering induced by the wrong.

The same principle applies to cases for criminal conversation. In cases for libel or slander, unless words used be such as in law are held to entitle the person against whom they are used to damages, at least nominal, special damages must be averred and proved or the action can not be maintained, and this without reference to the degree of mental distress, which may be inflicted by the language.

In all these classes of cases, where a pecuniary injury is shown, mental distress resulting from the same act which produced the pecuniary damages becomes an element in aggravation for which damages may be given.

The cases in which damages have been allowed for mental distress, resulting from injuries to persons, will be found to be cases in which the mental distress was the incident to a bodily injury suffered by the distressed person, or cases of injury to reputation or property, in which pecuniary damage was shown, or the act such that the law presumes some damage, however slight, from the act complained of, and not cases in which bodily injury or other wrong was suffered by one person and the mental distress by another; or where cases in which a direct pecuniary damage had been shown, and the element of mental distress had been admitted in aggravation of the in

juries for the purpose of recovering damages other than such as are only compensatory.

The rule is thus stated in Wood's Mayne on Damages, 74 (1st Am. Ed.): "But we do not apprehend that the rule has any such force as to enable a person to maintain an action where the only injury is mental suffering, as might be thought, from a reading of the loose dicta and statements of the court in some of the cases. So far as I have been able to ascertain the force of the rule, the mental suffering referred to is that which grows out of the sense of peril, or the mental agony, at the time of the happening of the accident, and that which is incident to and blended with the bodily pain incident to the injury and the apprehension and anxiety thereby induced. In no case has it ever been held that mental anguish alone, unaccompanied by an injury to the person, afforded a ground of action."

The following authorities bear upon the quession: Canning v. Inhahitants of Williamstown, 1 Cush. 452; Joch v. Dunkwardt, 85 Ill. 333; Lynch v. Knight, 9 H. L. Cases, 577, 598; Johnson v. Wells, Fargo & Co., 6 Nev. 225; Sherman & Redfield on Negligence, secs. 606, 606b; Fruse v. Tripp, 70 Ill. 503; Misall v. Anthis, 71 Ill. 241; Blake v. Midland Ry. Co., 10 Eng. L. & E. 442. No actual damages being shown to sustain the action, evidence which, in favor of the plaintiff in this case, could only bear upon the question of exemplary damages, and averments of a like kind, can be of no avail, for unless some actual damage had been sustained by the plaintiff he is not entitled to exemplary damages. Flanagan v. Womack, 54 Tex 50; Fruse v. Tripp, 70 Ill. 500.

The English cases held substantially that a person to whom a message is sent, cannot maintain an action, notwithstanding pecuniary injury may result to him by the failure of a telegraph company correctly or within a reasonable time to transmit it, unless the sender sustains to the person to whom the message is sent the relation of agent, through which privity of contract is established. Playford v. The United Kingdom Electric Telegraph Co., 4 Q. B. 706.

This doctrine has not been accepted by the courts of this country, but none of them have gone to the extent of holding that the person to whom the message is sent may maintain an action for the negligence of a telegraph company in transmitting, without averment and proof of some actual pecuniary injury sustained thereby.

We are referred to the case of SoRelle v. W. U. Telegraph Co., 55 Tex, 310, as an authority for the proposition that an action for mental suffering alone may be maintained. The opinion in that case does not seem to contain the proposition necessary to sustain this action; but we are of the opinion that it cannot be sustained upon the principle, nor upon the authority of adjudicated

cases.

The other assignments need not be considered, in the view which we take of the case. The demurrer to the petition in this case should have

been sustained, but as it was overruled the judgment will be reversed and the cause remanded, that an opportunity to amend the petition may be given and a case stated, if possible, which appears unlikely from the evidence, upon which the action. may be sustained.

Reversed and remanded.

EX POST FACTO LAW-MURDER-CHANGE IN THE EFFECT OF A PLEA OF GUILTY.

GARVEY v. PEOPLE.

Supreme Court of Colorado, May 11, 1883.

1. A law enacted after event, which alters the situation of one accused of crime to his disadvantage, is ex post facto and void.

2. A law enacted after the commission of an offense which alters the effect given to a plea of guilty to the disadvantage of one accused of such offense is, as far as he is concerned, ex post facto and void.

Error to the District Court of Arapahoe County.. BECK, C. J., delivered the opinion of the court: At the March term, 1881, of the Weld county district court, the plaintiff in error, was indicted for the murder of one George Wolf. The crime was charged to have been committed in said county on the 23d day of May, 1880. The prisoner plead not guilty to the indictment. A change of venue was applied for and the venue changed to Arapahoe county, where the cause was tried at the special November term of the district court of said county, resulting in a verdict of "guilty as charged in the indictment." Upon the verdict the prisoner was sentenced to imprisonment at hard labor in the State penitentiary for the residue of his natural life.

It is assigned for error that the court erred: First, in denying motion for continuance: Second, in denying motion in arrest of judgment; Third, in giving judgment on the indictment, no offense being charged therein, and there being no law to warrant judgment upon the said indictment. Only the second and third assignments are relied upon for a reversal, and no objection is pointed out to the form of the indictment.

Two principal propositions are laid down and. discussed by counsel for the prisoner, viz: First, That after the commission of the alleged offense and before trial, the law applicable to such cases was so amended as to change the rule of evidence and increase the punishment. Second. That the law under which the offense was committed was repealed before the trial, without a saving clause and there was no law in existence when the trial. was had against which the defendant had offended.

As the law stood prior to 1870, there was in Colorado but one grade of murder, and one mode of punishing the offense, which was death by hanging. (Section 20 and 183, chapter 22, R. S...

1868.) Section 20 provided that "the punishment of any person or persons convicted of the crime of murder shall be death."

In 1870 the legislature amended sec. 20 as follows: Section 1. That sec. 20 of said chapter 22 of the revised statutes of Colorado Territory shall be hereafter construed so that the death penalty for the crime of murder shall not be ordered to be inflicted by courts of the territory, unless the jury trying the case shall, in their verdict of guilty, also indicate that the killing was deliberate or premeditated; or was done in the perpetration or the attempt to perpetrate some felony. Sec. 2. Any person hereafter found guilty of the crime of murder by the verdict of a jury without any indication in such verdict, whether the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony shall be sentenced to confinement in the penitentiary, for and during such person's natural life; which confinement may be, with or without hard labor, or both, at the discretion of the court. Laws 1870, pp. 70, 71.

The above sections 1 and 2 of the act of 1870 were inserted in chapter 24 of the compilation of the statutes in 1877, as secs. 268 and 269 of the criminal code (G. L. 1877, pp. 339, 340), and are referred to by the last mentioned numbers in the legislation of 1881. The law remained as thus amended until the passage of the act of March 1, 1881, when secs. 268 and 269 were repealed, and two other sections enacted to stand in lieu thereof, numbered respectively sec. 3 and sec. 4 of said act, as follows: Sec. 3. Sec. 268 of said chapter is hereby repealed, and the following shall stand in lieu thereof as sec. 268.

"The death penalty for the crime of murder shall not be ordered to be inflicted by the courts of this State in any case unless the jury trying the case shall in their verdict of guilty, also indicate the killing was deliberate or premeditated. or was done in the perpetration or attempt to perpetrate some felony, or unless the jury, in case where the defendant pleads guilty, and the jury to whom the question of deliberation or premeditation or that the killing was done in the perpetration or attempt to perpetrate some felony, shall be submitted as hereinafter provided; shall in their verdict upon that question indicate that the killing was deliberate or premeditated or was done in the perpetration or attempt to perpetrate some felony.

In case where the the party indicted for the crime of murder shall plead guilty thereto, and persist therein, the court thereupon shall impanel a jury, as in other cases, to whom shall be submitted and who shall hear and determine the question and vindicate (indicate) in their verdict whether or not the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony; and in such case, that question and none other shall be submitted to the jury."

Sec. 4. Sec. 269 of said chapter is hereby repealed, and the following shall stand in lieu

thereof, as sec. 269: Any person hereafter found guilty of the crime of murder by his plea of guilty in case such plea is received, or by the verdict of a jury, where a trial is had without any confession in such plea, or indication in such verdict whether the killing was deliberate or premeditated or was done in the perpetration or attempt to perpetrate some felony, shall be sentenced to confinement in the Penitentiary for and during such person's natural life; which confinement may be with or without hard labor, at the discretion of the court. Laws 1881, pp. 70, 71.

In support of the proposition that the legisla tion of 1881 had the effect to change the rule of evidence and to increase the punishment, the prisoner's counsel made the point that, as the law stood at the time the offense was committed, a prisoner had the right to plead guilty, and by so doing escape all hazard of a death sentence. This plea, they say, was conclusive of the prisoner's innocence of murder in the first degree, and conclusive of murder in the second degree; that the court was bound to accept the plea, and to render judgment thereon for the lower grade of murder, without an examination of facts for the purpose of ascertaining the degree of guilt, and that such was the practice adopted by the district courts.

Many authorities are cited in support of the propositions, that a plea of guilty to an indictment for homicide only confesses the guilt of the accused as to the lowest grade of the offense; that it authorizes the same judgment as does a general verdict of guilty returned by a jury, which is held to be responsive to the lowest degree of the crime charged in the indictment. These propositions are fully supported by the authorities cited as to cases wherein the indictment is in the common law form. 2 Bish. Crim. Proc., sec. 506, note 4, and cases cited.

There is a strong reason why no greater effort should be given the ordinary plea of guilty,under the statutes of the State, as they existed prior to the amendment of 1871, than that accorded to a general verdict of guilty. The reason is that the statutes require the grade of the offense to be ascertained by the verdict of a jury before the death penalty could be ordered to be inflicted. To authorize a sentence of death, the jury were required to find and indicate in their verdict that the killing was deliberate or premeditated, or was done in the perpetration, or attempt to perpetrate,some felony. But no provision was made for submitting to a jury the question of the grade of the offense when the defendant pleaded guilty. It was not required that these circumstances of aggravation should be charged in the indictment, but on the other hand the common law form of indictment was prescribed as sufficient in all murder cases. Laws of 1879, p. 50.

Under these statutes a verdict of "guilty in manner and form as charged in the indictment," was in all cases a conviction of the lower grade of murder. Although the indictment charged that it was committed with premeditation or un

der any of the other circumstances which constitute murder of the higher grade; the effect of a general verdict of guilty was the same. The only sentence that could be awarded was imprisonment, with or without hard labor, in the penitentiary for the life of the offender.

We can conceive of no satisfactory reason why a plea of guilty in "manner and form, as charged in the indictment," should not have the same effect as the verdict of a jury in the same form.

Whether the court was bound to accept such plea and to render judgment of imprisonment thereon, without instituting further proceedings to ascertain the degree of guilt, may admit of some doubt, but that such was the practice must be eonceded. It was under this construction of the statute that Philomena Gallotti and six or seven other Italians were sentenced to confinement in the penitentiary for life on their plea of guilty for the murder of four Italian musicians. And while it was generally deplored that the statute permitted the perpetrators of that horrible assassination to escape the severest penalty of the law, yet we are not aware that the soundness of the ruling has been questioned. Whether correct or not, however, such being the recognized practice, the effect was the same as if it had been duly authorized; persons indicted for murder could avail themselves of it without risk, since the statute gave neither an appeal or writ of error in favor of the people. Even if they did it would probably be unavailing in such a case. The Constitution of this State provides that no person shall be twice put in jeopardy for the same offense. When a prisoner is arraigned upon a sufficient indictment, his plea has been accepted and recorded, not only as a confession of his guilt but as evidence of the degree of guilt and final judgment entered thereon; a new trial subjecting him to the hazard of a conviction for a higher grade of offense, would not only appear to be in violation of the Constitution, but in conflict with the great weight of authority on the point. 1 Bishop Cr. L. 992, 1024 and cases cited. It is evident that the legislature recognized this construction of the law as being settled in accordance with the practice referred to, from the changes made therein by that body in 1881. These changes relate only to the effect of the plea of guilty.

The intent of the legislature in this behalf is not as intelligibly expressed as it might be, but that it was intended to change the effect heretofore accorded the plea of guilty so that the death penalty might be imposed, notwithstanding the plea, is apparent. This is the only construction which the language employed is susceptible of, that will not produce absurd consequences. Judge Ranney says in Debolt v. Ohio Life Insurance and Trust Company, 1 Ohio St. 563, that "the legislature will not be presumed to have intended an absurd or unjust consequence." Chief Justice Shaw said, "We can only ascertain the legal intent of the legislature by the language they have used, applied and expounded conform

ably to the settled and well-known rules of construction." Commonwealth v. Kimball, 21 Pick. 376. Mr. Sedgwick says that, in construeing a statute, Lord Coke's rule is to be kept in view, and the judges are to inform themselves of the previous state of the law, and of the mischiefs which the statute to be construed was passed to obviate. Sedgwick's Stat. and Con. Law, 202. Giving effect, then, to the obvious meaning of the statute, we approach the inquiry. What effect did the change in the law produce upon the legal rights of the prisoner? As the law stood on the 23d day of May, 1880, when the murder was committed, any person indicted for murder had it within his power to avoid all risk of a capital sentence by pleading guilty. In November, 1881, the time of the trial, this privilege did not exist; it had been taken away by the act of March 1, 1881.

The Constitution of the United States prohibits each State from passing ex post facto laws. The mandate of our State Constitution is that no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operations shall ever be passed by the General Assembly. The leading case upon laws of this character is Calder v. Bull, 3 Dallas, 386, decided by Justice Chase in the Supreme Court of the United States in 1798. He said: "I will state what I consider ex post facto laws within the words and the intent of the prohibition: First. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. Second. Every law that aggravates a crime and makes it greater than it was when it was committed. Fourth. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender."

It is argued with much plausibility by the prisoner's counsel that the statute has been so changed that what was before received as conclusive evidence of innocence, as to the higher grade of the offense, viz.: a plea of guilty, has, under the new act, no effect as evidence for the prisoner at all. In a recent opinion in the Supreme Court of the United States, by Mr. Justice Miller, this subject was very fully considered, and the most important cases cited and reviewed. Among the cases cited approvingly, and which seems peculiarly appropriate to the present case, is United States v. Hall, Washington, C. C. 366, afterwards affirmed by the Supreme Court in 6 Cranch. 171.. Mr. Justice Washington said, in this case, that "an ex post facto law is one which in its operation makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense or its consequences, alters the situation of a party to his disadvantage." By way of applica-tion to the case on trial, which was for the violation of the embargo laws, he added: "If the enforcing law applies to this case there can be no

doubt that so far as it takes away or impairs the defense which the law had provided the defendant at the time his bond became forfeited, it is ex post facto and inoperative." Another case cited by Mr. Justice Miller, and which illustrates the extent to which the doctrine is carried, is that of Commonwealth v. McDonnough, 95 Mass. 581. "It was held," says the learned justice, "that a law passed after the commission of the offense of which the defendant stood charged, which mitigated the punishment, as regarded the fine and maximum of imprisonment that might be inflicted under an ex post facto law as to that case, because the minimum of imprisonment was made three months, whereas, before there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offense."

Among the other cases cited and referred to in this able opinion of Mr. Justice Miller, are: Hartung v. the People, 22 N. Y. 95; In re Petty, 22 Kansas, 95; State v. Keith, 63 N. C; State v. Tweed, 25 Tex. Sup., 66; Shepherd v. the People, 25 N. Y. 406; Green v. Shumway, 38 N. Y. 418.

The case above referred to as being recently decided by the Supreme Court of the United States, was that of Kring v. State, error to the Supreme Court of the State of Missouri, reported in Central Law Journal, April 20, 1883. [16 C.L. J.308.] Kring was indicted for murder, and upon his plea of guilty, was convicted of murder in the second degree and sentenced to twenty-five years imprisonment. He appealed and the judgment was reserved. By the law of Missouri, in force when the homicide was committed, this conviction was an acquittal of the charge of murder in the first degree, but the law was subsequently so changed by an amendment to the State Constitution that when a judgment on a plea of guilty should be lawfully set aside it should not be held to be an acquittal of the higher crime. He was subsequently tried several times before a jury, his plea having been set aside by the trial court and a plea of not guilty entered by order of the court, and upon the last trial he was found guilty of murder in the first degree and sentenced to be hanged. The judgment was affirmed, first by the Court of Appeals and afterward by the Supreme Court of the State, these courts taking the position that the change in the law having been effected before the plea and judgment were entered of guilty of murder in the second degree, and that as the new law was in force when the conviction on that plea was had, its effect, as to future trials in that case must be governed by that law; that the change was not a change in crimes, but in criminal procedure, and that such changes are not ex post facto. Referring to this ruling, Justice Miller asks and answers the pertinent question: "Can any substantial right which the law gave the de

fendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because in the use of a modern phrase it is called a law of procedure? We think it can not." In another part of the opinion he says: "Whatever may be the essential nature of the change it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the charge cannot be denied." The judgment of the State court was reversed upon the ground that "the provision of the Constitution of Missouri which denies to the plaintiff in error the benefit which the previous law gave him, of acquittal of the charge of murder in the first degree on conviction of murder in the second degree, is as to his case an ex post facto law within the meaning of the Constitution of the United States."

Applying the principles of the above authorities to the questions raised by the assignments of error in the case at bar, it would seem that the act of March 1, 1881, has changed the law of this State to the disadvantage of those indicted for murders previously committed. These principles have no reference to convictions under a statute before its repeal.

Attorney-General Toll takes the position that the law of 1870 was substantially re-enacted by the later statute which had the effect to continue the law in force without intermission, citing Bishop on Stat. Crimes, section 181, State v. Gumber, 37 Wis., 298, and several other Wisconsin cases to the same effect, and a few other cases. Upon this hypothesis he argues that the recent legislation did not change the law applicable to the case of the plaintiff in error, upon his plea of not guilty.

Were it conceded that the authorities cited are sound the answer to this argument is that the pre-existing law relating to the crime of murder and its consequences was not substantially re-enacted. On the contrary, a substantial defense to murder in the higher grade was taken wholly away by the change made in respect to the plea of guilty. This plea, as it existed under the former law, has now no existence at all, practically, so far as this offense is concerned. Formerly, it operated as an acquittal of the highest grade of the offense. As it now exists, it is more unfavorable to the party pleading it than the plea of not guilty, there is a chance for acquittal, the present plea of guilty insures conviction as to the lower grade, leaving the accused to take the same risks of conviction of the higher grade as under the other plea.

This defense, under the former practice, was available as to the crime of murder and its consequences, and the accused had the legal right to avail himself of the immunity from a death sentence at any time before conviction. It cannot militate against the plaintiff in error that he did not at his trial seek to take advantage of a defense which had previously been taken away from him.