It appears from the record in this case, that the plaintiff in error was indicted for manslaughter, and had his trial at the October term, 1849, of the circuit court of Grant county.

On his trial, his counsel asked the court to instruct the jury that “the jury must, in this case, find the defendant guilty of manslaughter in the first degree, or not guilty,” which the court refused, but charged them, “ that they might, upon this indictment, according to the evidence, find a general verdict of not guilty, or find a verdict of guilty of manslaughter of either first, second, third or fourth degrees of manslaughter, as provided in the revised statutes of Wisconsin.”

The jury returned a verdict of “guilty of manslaughter in the fourth degree.” Motions for a new trial and in arrest of *103judgment were interposed, which were overruled, and the plaintifE sentenced to one year’s imprisonment in the county jail. The plaintifE in error then sued out his writ of error, and brought the cause to this court. It is contended that the court erred in refusing the instruction ashed, and in charging the jury as it did; in not granting a new trial; in not arresting the judgment, and in passing sentence upon the prisoner.

It is argued that as the crime was committed and the indictment found prior to the revised statutes going into operation, that the trial and judgment, if any, must be in accordance with the statutes of 1889, there being no grades or degrees in the crime of manslaughter in existence, at the time of the finding of the indictment, and the revised statutes having created four different grades or degrees of that crime, and also a greater and different punishment from that in force at the time the act was committed and indictment found. This comprises the whole case, so far as error is alleged.

In order that we may more readily s.ee the force of these objections, and the positions assumed, we will refer to the statutes relative to the subject matter, and give them a careful examination. The statutes of 1839, page 348, sec. 8, provide, “that every person who shall commit the crime of manslaughter, shall be punished by imprisonment in the state prison not more than ten years, nor less than one year.” This is all the statute of 1839 contains upon this point.

The revised statutes of 1849, sec. 22, ch. 133, provide as follows : “ Persons convicted of manslaughter in the first, second and third degrees, shall be punished in the state prison as follows: Persons convicted of manslaughter in the first degree, for a term not less than seven years; if convicted of manslaughter in the second degree, for a term not more than seven nor less than four years ; if convicted of manslaughter in the third degree, not more than four years and not less than two years.” The next section provides that “ every person convicted of manslaughter in the fourth degree shall be punished *104by imprisonment in tbe state prison for two years, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.”

It is contended that as there is no limit specified to the punishment of a person convicted of manslaughter in the first degree under this act, it becomes chargeable with creating a higher grade of punishment than that prescribed by the statute of 1839. But this is answered by reference to sec. 30 of the same chapter, which provides that “ every person who shall commit the crime of manslaughter shall be punished by imprisonment in the state prison not more than ten years nor less than one year.”

This section being verbatim that of the statute of 1839, clearly limits the punishment in all cases to as low a grade as that of 1839, and does not permit a sentence to extend beyond ten years, and answers that objection beyond cavil. This comprises all the statutory provisions concerning the punishment of this crime. There is, however, provision made which applies to the mode of trial and sentence, ch. 157, secs. 3 and 4, of the act repealing the statute of 1839, to wit: “ No offense committed, and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of these revised statutes, such provision shall apply to and control any judgment to be pronounced after the said statutes shall take effect for any offense committed before that time.”

“ Sec. 4. No prosecution for any offense, or the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, shall be affected by such repeal ; but the same shall proceed in all respects as if such provision had not been repealed, except that all such proceedings had after the time when the said revised statutes shall take effect *105shall be conducted according to the provisions of tbe said statutes, and shall be in all respects subject to the said provisions.” Now we need not go to tbe common law, or in search of adjudicated cases, to prove that no greater punishment could be inflicted than the one in force at the time the crime was committed, nor that the accused shall "have the benefit of any mitigation of punishment under a subsequent act of the legislature ; the legislature having settled this point in sec. 8, above cited. It is clear at common law, that no different punishment of a higher grade can be inflicted in such cases, though one of a different and less grade may be. But who is to judge of the degree of punishment? Is it the prisoner or the court ? Unquestionably the court. Suppose á murder has been committed and an indictment found, but before trial the legislature abolish capital punishment, the prisoner is convicted and claims the sentence of death to be pronounced upon him, rather than endure, as he may say, that greater punishment of imprisonment for life, without the hope of pardon or the enjoyment of any of nature’s blessings destined for his race; can he have this sentence passed upon him ? Can the governor issue a warrant to carry into effect such sentence, or the sheriff legally execute it, if issued? Again, if he is sentenced under the then existing law, can he claim his discharge upon a writ of habeas corpus ? If he could not have his choice of punishment in this supposed case (which is as strong a case as we could imagine), why, in another of much less magnitude and moment to him ?

The revised statutes did not create manslaughter a crime ; it existed as such before; nor did it change the mode of punishment except in one state of case, where it reduced the punishment from one year’s imprisonment in the state prison, to a few months’ imprisonment in the county jail, or to a mere flue “not exceeding one thousand dollars.” This is clearly a mitigation of punishment. True, the revised statutes arrange the crime of manslaughter into degrees; but this amounts to nothing *106more than giving the jury an additional duty, and relieving the court from a duty that before devolved upon it. The grade is to be gathered from the facts of the case canvassed by the jury.

But it is contended that the prisoner had a right to the clemency of the judge, but is now thrown upon the sympathy of a jury. If this reasoning be carried out, we permit the accused to say: “ when I committed the act you complain of, had I been tried, judge A. would have presided over my trial, and I now claim, as a legal right, to be tried by him instead of this judge B.; for certainly, I would receive a more lenient trial by him than by judge B.” Again, when we passed from a territorial to a state government, all persons charged with crime could say : “ when I committed this offense, I was indicted as acting against the peace and dignity of the United States; I then had a right to be tried by a district court, over which a judge presided who was appointed by the President of the United States; now you attempt to try me by a circuit court, over which a judge presides who has been selected by a general vote of the- people of the circuit, and I claim my discharge as my legal right. I do not regard this law you choose to call a constitution, that has been adopted since I committed the act you complain of.” If such are the principles of our laws, every change of criminal law, or of the judges whose duty it is to administer it, would be a day of jubilee to criminals not sentenced.

But we must act as directed by our constitution and statutes. Sec. 4, above cited, required the circuit judge who tried the cause, to do as he did on the trial; the accused could not have been tried under the old statute, there being a difference in impaneling jurors, and many other important matters, the plaintiff in error placed himself in that position, and asked an instruction to the jury strictly, under the revised statutes. Why such an instruction was asked can only be accounted for on the ground that this counsel was aware that the evidence *107was not sufficient to make out a case of manslaughter in the first degree, when it was clearly a case in the fourth degree; and under that instruction the jury must acquit the accused, although he would have been convicted under the statute of 1889 by a general verdict of guilty.

The views here taken are fully sustained in the opinion' of the court delivered by SAVAGE, C. J., in the case of People v. Phelps, 5 Wend., 10. We therefore see no cause, either from adjudicated eases, in reason or justice, to disturb the judgment of the circuit court.

Conviction affirmed.