This is a writ of error to the supreme court of Missouri. The plaintiff in error was indicted in the criminal court of St. Louis for murder in the first degree, charged to have been committed January 4, 1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once on plea of guilty of murder in the second degree. His case has been three times before the court of appeals of that state, and three times before the supreme court of the state. In the last instance, the supreme court affirmed the judgment of the criminal court, by which he was found guilty of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ of error is directed. It is to be premised that the court of appeals is an intermediate appellate tribunal between the criminal court of St. Louis and the supreme court of the state, to which all appeals of this character are first taken. At the trial, immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty to murder in the second degree, which plea was accepted by the prosecuting attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for 25 years. He took an appeal from this judgment, on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did his sentence should not exceed 10 years' imprisonment, and the supreme court reversed that judgment, and remanded the case to the St. Louis criminal court for further proceedings. In that court, when the case was again called, the defendant refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree, and ordered a general plea of not guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment was affirmed by the supreme court of the state. By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the second degree, defendant raised the point that the proceedings under that plea, namely, its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense. This point he insisted on in the circuit court, and relied on it for reversing the judgment in the court of appeals and in the supreme court. Both these latter tribunals, in the opinions delivered by them, and which are part of the record, conceded that such was the law of the state of Missouri at the time the homicide was committed. But they overruled the defense on the ground that by section 23 of article 2 of the constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and for this reason defendant could be tried for murder in the first degree, notwithstanding his conviction and sentence for murder in the second degree. As this new constitution was adopted after the crime was committed for which Kring is indicted, and, as construed by the court of appeals and the supreme court, changes the law as it then stood to the disadvantage of the defendant, the jurisdiction of this court is invoked on the ground that, as to this case, and as so construed, it is an ex post facto law, within the meaning of section 10, art. 1, of the constitution of the United States.
That it may be clearly seen what the supreme court of Missouri decided on this subject and what consideration they gave it, we extract here all that is said in their opinion about it. 'There is nothing in the point,' they say, 'that after an accepted plea of guilty of murder of the second degree the defendant could not be put upon trial for murder of the first degree. We shall, on that proposition, accept what is said by the court of appeals in its opinion in this cause.' What that court said on this subject is as follows:
'The theory of counsel for defendant that a plea of guilty of murder in the second degree, regularly entered and received, precludes the state from afterwards prosecuting the defendant for murder in the first degree, is inconsistent with the ruling of the supreme court in State v. Kring, 71 Mo. 551, and in State v. Stephens, Id. 535. The declarations of defendant that he would stand upon his plea already entered were all accompanied with a condition that the court should sentence him for a term not to exceed 10 years, in accordance with an alleged agreement with the prosecuting attorney, which the court would not recognize. The prisoner did not stand upon his plea of guilty of murder in the second degree; he must, therefore, be taken to have withdrawn that plea, and, as he refused to plead, the court properly directed the plea of not guilty of murder in the first degree to be entered.
'Formerly it was held in Missouri (State v. Ross, 20 Mo. 32 that when a conviction is had of murder in the second degree on an indictment charging murder in the first degree, if this be set aside the defendant cannot again be tried for murder in the first degree. A change introduced by section 23 of article 2 of the constitution of 1875 has abrogated this rule. On the oral argument something was said by counsel for the defendant to the effect that under the old rule defendant could not be put on his trial for murder in the first degree, and that he could not be affected by the change of the constitutional provision, the crime having been committed while the old constitution was in force. There is, however, nothing in this; this change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto. Gut v. State, 9 Wall. 35; cummings v. Missouri, 4 Wall. 326.'
We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder of the first degree; and that, but for the change in the constitution of the state, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change of the constitution it would, in this case, be liable to objection as an ex post facto law, the only answer is that there is nothing in it, as the change is simply in a matter of procedure. 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 change cannot be denied.
It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea, nor upon its acceptance by the state's attorney, nor the consent of the court; but it stands upon the judgment and sentence of the court by which he is convicted of murder in the second degree, and sentence pronounced according to the law of that guilt, which was by operation of the same law an acquittal of the other and higher crime of murder charged in the same indictment. It is sufficient for this case that the supreme court of Missouri, in the opinion we are examining, says it was so, and cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for plaintiff in error cites to the same effect the cases of State v. Ball, 27 Mo. 327; State v. Smith, 53 Mo. 139.
Blackstone says, (Comm. book 4, side page 336:)
'The plea of autrefois convict, or a former conviction for the same identical crime, through no judgment was ever given, or, perhaps, will be, (being suspended by benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, (that is, autrefois acquit,) that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter, on an appeal or indictment, is a bar even in another appeal, and much more in an indictment for murder; for the fact prosecuted is the same in both, though the offenses differ in coloring and degree.' See State v. Norvill, 2 Yerg. 24; 9 Yerg. 337.
This law, in force at the date of the homicide for which Kring is now under sentence of death, was changed by the state of Missouri between that time and his trial so as to deprive him of its benefit, to which he would otherwise have been entitled, and we are called on to decide whether in this respect, and as applied by the court to this case, it is an ex post facto law within the meaning of the constitution of the United States. There is no question of the right of the state of Missouri, either by the her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that as to that offense it is ex post facto. This term necessarily implies a fact or act done, after which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot. As to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. But, so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character.
In the case before us an argument is made founded on a change in this rule. It is said the new law in Missouri is not ex post facto, because it was in force when the plea and judgment were entered of guilty of murder in the second degree; thus making its character as an ex post facto law to depend, not upon the date of its passage as regards the commission of the offense, but as regards the time of pleading guilty. 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. But this is begging the whole question, for if it was, as to the offense charged, an ex post facto law, within the true meaning of that phrase, it was not in force and could not be applied to the case, and the effect of that plea and conviction must be decided as though no such change in the law had been made. Such, however, is not the ground on which the supreme court and the court of appeals placed their judgment. 'There is nothing,' say they, 'in this; the change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto.'
Before proceeding to examine this proposition, it will be well to get some clear perception of the purpose of the convention which framed the constitution in declaring that no state shall pass any ex post facto law. It was one of the objections most seriously urged against the new constitution by those who opposed its ratification by the states, that it contained no formal bill of rights. Federalist, No. 84. And the state of Virginia accompanied her ratification by the recommendation of an amendment embodying such a bill. 3 Elliott, Deb. 661.
The feeling on this subject led to the adoption of the first 10 amendments to that instrument at one time, shortly after the government was organized. These are all designed to operate as restraints on the general government, and most of them for the protection of private rights of persons and property. Notwithstanding this reproach, however, there are many provisions in the original instrument of this latter character, among which is the one now under consideration. So much importance did the convention attach to it, that it is found twice in the constitution,-first as a restraint upon the power of the general government, and afterwards as a limitation upon the legislative power of the states. This latter is the first clause of section 10 of article 1, and its connection with other language in the same section may serve to illustrate its meaning: 'No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.' It will be observed that here are grouped contiguously a prohibition against three distinct classes of retrospective laws, namely bills of attainder, ex post facto laws, and laws impairing the obligations of contracts. As the clause was first adopted, the words concerning contracts were not in it, because it was supposed that the phrase 'ex post facto law' included laws concerning contracts as well as others. But it was ascertained before the completion of the instrument that this was a phrase which, in English jurisprudence, had acquired a signification limited to the criminal law, and the words 'or any law impairing the obligation of contracts' were added to give security to rights resting in contracts. 2 Banc. His. Const. 213.
Sir Thomas Tomlin, in that magazine of mearing, the English edition of 1835 of his Law Dictionary, says: 'Ex post facto is a term used in the law, signifying something done after, or arising from or to affect, another thing that was committed before.' 'An ex post facto law is one which operates upon a subject not liable to it at the time the law was made.'
The first case in which this court was called upon to construe this provision of the constitution was that of Calder v. Bull, 3 Dall. 386, decided in 1798. The opinion of the court was delivered by CHASE, J., and its main purpose was to decide that it had no application to acts concerning civil rights. The opinion, however, is important, as it discusses very fully the meaning of the provision in its application to criminal cases. It defines four distinct classes of laws embraced by the clause:
'(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates the crime of makes it greater than it was when committed; (3) every law that changes the punishment and inflicts a greater punishment than was annexed to the crime when committed; (4) 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.'
'But I do not consider any law ex post facto, within the prohibition, that modifies the rigor of the law, but only these that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction.'
In the case before us the constitution of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment, for, whereas the law, as it stood when the homicide was committed, was that, when convicted of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction. But it is not to be supposed that the opinion in that case undertook to define, by way of exclusion, all the cases to which the constitutional provision would be applicable. Accordingly, in a subsequent case tried before Mr. Justice WASHINGTON, he said, in his charge to the jury, 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.' U.S. v. Hall, 2 Wash. C. C. 366. He adds, by way of application to that case, which was for a violation of the embargolaws: 'It 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 when the condition of this bond became forfeited, it is ex post facto and inoperative.' This case was carried to the supreme court and the judgment affirmed. 6 Cranch, 171.
The new constitution of Missouri does not take away what, by the law of the state when the crime was committed, was a good defense to the charge of murder in the first degree.
In the subsequent cases of Cummings v. State and Ex parte Garland, 4 Wall. 277-333, this court held that a law which excluded a minister of the gospel from the exercise of his clerical function, and a lawyer from practice in the courts, unless each would take an oath that they had not engaged in or encouraged armed hostilities against the government of the United States, was an ex post facto law, because it punished, in a manner not before punished by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction. Though this court was divided in that case, it was because the minority were of the opinion that the act in question was not a crimes act, and that it inflicted no punishment, in the judicial sense, for any past crime, and they did not controvert the proposition that it was an ex post facto law if it had that effect.
In these cases we have illustrations of the liberal construction which this court, and Mr. Justice WASHINGTON in the circuit court, have given to the words 'ex post facto law'-a construction in manifest accord with the purpose of the constitutional convention to protect the individual rights of life and liberty against hostile retrospective legislation. Nearly all the states of the Union have similar provisions in their constitutions, and whether they have or not, they all recognize the obligatory force of this clause of the federal constitution on their legislation. A reference to some decisions of those courts will show the same liberality of construction of the provision, many of them going much further than is necessary to go in this case to show the error of the Missouri courts.
In the supreme court of Massachusetts, in the case of Com. v. McDonough, 13 Allen, 581, it was held that a law passed after the commission of the offense of which defendant stood charged, which mitigated the punishment, as regarded the fine and the maximum of imprisonment that might be inflicted, was 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.
In the case of Hartuny v. People, 22 N. Y. 95, after she had been convicted of murder and sentenced to death, and while her case was pending on appeal, the legislature of that state changed the law for the punishment of murder in general, so as to authorize the governor to postpone indefinitely the execution of the sentence of death, and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it. The court of appeals held that, while this later law repealed all existing punishments for murder, it was ex post facto as to Mrs. Hartung's Case, and could not be applied to it, and this was decided in face of the fact that it resulted in the discharge of a convicted murderess without any punishment at all. Judge DENIO, in delivering the opinion of the court, makes these excellent observations:
'It is highly probable that it was the intention of the legislature to extend favor, rather than increased severity, towards this convict and others in her situation; and it is quite likely that, had they been consulted, they would have preferred the application of this law to their cases, rather than that which existed when they committed the offences of which they were convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority, before the imputed offence was committed, and which existed as a law at that time. . . . No State shall pass any ex post facto law, is the mandate of the Constitution of the United States.' (Emphasis added.)
This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N. Y. 406; Green v. Shumway, 39 N. Y. 418; and In re Petty, 22 Rand. (Kan.) 477, the same thing is decided.
In the case of State v. Keith, 63 N. C. 140, the supreme court of that state held that a law repealing a statute of general amnesty for offenses arising out of the rebellion was ex post facto and void, though both statutes were passed after the acts were committed with which defendant was charged.
In the case of the State v. Sneed, 25 Tex. (Supp.) 66, the court held that, in a criminal case barred by the statute of limitations, a subsequent statute which enlarged the time necessary to create a bar was, as to that case, an ex post facto law, and it could not be supposed to be intended to apply to it.
When, in answer to all this evidence of the tender regard for the rights of a person charged with crime under subsequent legislation affecting those rights, we are told that this very radical change in the law of Missouri to his disadvantage is not subject to the rule because it is a change, not in crimes, but in criminal procedure, we are led to inquire what that court meant by criminal procedure.
The word 'procedure,' as a law term, is not well understood, and is not found at all in Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes. Bishop, Crim. Proc. In his first chapter he undertakes to define what is meant by procedure. He says: 'Sec. 2. The term procedure is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, 'pleading,' 'evidence,' and 'practice." And in defining 'practice,' in this sense, he says: 'The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in;' and 'evidence,' he says, as part of procedure, 'signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted.'
It this be a just idea of what is intended by the word 'procedure,' as applied to a criminal case, it is obvious that a law which is one of procedure may be obnoxious as an ex post facto law, both by the decision in Calder v. Bull, 3 Dall. 386, and in Cummings v. Missouri, 4 Wall. 277, for in the former case this court held that 'any law which alters the legal rules of evidence, and receives less or different testimony than the law requires at the time of the commission of the offense in order to convict the offender,' is an ex post facto law; and in the latter, one of the reasons why the law was held to be ex post facto was that it changed the rule of evidence under which the party was punished. But it cannot be sustained without destroying the value of the constitutional provision that no law, however it may invade or modify the rights of a party charged with crime, is an ex post facto law within the constitutional provision, if it comes within either of these comprehensive branches of the law designated as 'pleading,' 'practice,' and 'evidence.' Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed by state legislation, after the offense committed, to the disadvantage of the prisoner, and not held to be ex post facto, because it relates to procedure, as it does according to Mr. Bishop? And can any substantial right which the law gave the defendant 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 cannot.
Some light may be thrown upon this branch of the argument by recurrence to a few of the numerous decisions of the highest courts construing the associated phrase in the same sentence of the constitution which forbids the states to pass any law impairing the obligation of contracts. It has been held that this prohibition also relates exclusively to laws passed after the contract is made, and its force has been often sought to be evaded by the argument that laws are not forbidden which affect only the remedy, if they do not change the nature of the contract or act directly upon it. The analogy between this argument and the one concerning laws of procedure, in relation to the contiguous words of the constitution, is obvious. But while it has been held that a change of remedy made after the contract may be valid, it is only so when there is substituted an adequate and sufficient remedy by which the contract may be enforced, or where such remedy existed and remained unaffected by the new law. Tennessee v. Sneed, 96 U.S. 69; Antoni v. Greenhow, ante, 91.
On this point it has been held that laws are void enacted after the date of the contract: (1) Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4 Litt. (Ky.) 35; McKinney v. Carroll, 5 Mon. 98. (2) Which require on a sale of his property under execution an appraisement, and a bid of two-thirds the value so ascertained. Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; 4 Litt. 35; Sprott v. Reid, 3 G. Greene, 489. (3) Which allow a period of redemption after such sale. Lapsley v. Brashear, 4 Litt. 58; 7 Mon. (Ky.) 54; Cargill v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341. (4) Which exempt from sale under judgment for the debt a larger amount of the debtor's property than was exempt when the debt was contracted. Edwards v. Kearney, 96 U.S. 59, and the cases there cited; Story, Comm. Const. § 1385.
There are numerous similar decisions showing that a change of the law which hindered or delayed the creditor in the collection of his debt, though it related to the remedy or mode of procedure by which that debt was to be collected, impaired the obligation of the contract within the meaning of the constitution. Why are not the rights of life and liberty as sacred as the right of contract? Why should not the contiguous and associated words in the constitution, relating to retroactive laws, on these two subjects, be governed by the same rule of construction? And why should a law, equally injurious to the rights of the party concerned, be void in one case and not in the other, under the same circumstances? But it is said that at the time the prisoner pleaded guilty of the second degree of murder, and at the time he procured the reversal of the judgment of the criminal court on that plea, the new constitution was in force, and he was bound to know the effect of the change of the law on his case. We do not controvert the principle that he was bound to know and take notice of the law. But, as regards the effect of the plea and the judgment on it, the constitution of Missouri made no change. It still remained the law of Missouri, as it is the law of every state in the Union, that so long as the judgment rendered or that plea remained in force, or after it had been executed, the defendant was liable to no further prosecution for any charge found in that indictment. Such was the law when the crime was committed, such was the law when he pleaded guilty, such is the law now in Missouri, and everywhere else. So that, in pleading guilty under an agreement for 10 years' imprisonment, both he and the prosecuting attorney and the court all knew that the result would be an acquittal of all other charges but that of murder in the second degree.
Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that act, for if the judgment of the lower court sentencing him to 25 years' imprisonment had been affirmed, no one will assert that he could still have been tried for murder in the first degree. Nor was there anything else done by him to waive this acquittal. He refused to withdraw his plea of guilty. It was stricken out by order of the court against his protest. He refused then to plead not guilty, and the court in like manner, against his protest, ordered a general plea of not guilty to be filed. He refused to go to trial on that plea, and the court forced him to trial.
The case rests then upon the proposition that, having an erroneous sentence rendered against him on the plea accepted by the court, he could only take the steps which the law allowed him to reverse that sentence at the hazard of subjecting himself to the punishment of death for another and a different offense of which he stood acquitted by the judgment of that court; that he prosecuted his legal right to a review of that sentence with a halter around his neck, when, if he succeed in reversing it, the same court could tighten it to strangulation, and if he failed, it did him no good. And this is precisely what has occurred. His reward for proving the sentence of the court of 25 years' imprisonment (not its judgment on his guilt) to be erroneous, is that he is now to be hanged, instead of imprisoned in the penitentiary. No such result could follow a writ of error before, and as to this effect the new constitution is clearly ex post facto. The whole error, which results in such a remarkable conclusion, arises from holding the provision of the new constitution applicable to this case, when the law is ex post facto and inapplicable to it.
If Kring or his counsel were bound to know the law when they prosecuted the writ of error, they were bound to know it as we have expounded it. If they knew that by the words of the new constitution such a judgment of acquittal as he had when he undertook to reverse it would be no longer an acquittal after it was reversed, they also knew that, being as to his case an ex post facto law, it could have no such effect on that judgment.
We are of opinion that any law passed after the commission of an offense which, in the language of WASHINGTON, in U.S. v. Hall, 'in relation to that offense, or its consequences, alters the situation of a party to his disadvantage,' is an ex post facto law; and in the language of DENIO, in Hartung v. People: 'No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.'
Tested by these criteria, the provision of the constitution of Missouri which denies to 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, and for the error of the supreme court of Missouri, in holding otherwise, its judgment is reversed, and the case is remanded to it, with direction to reverse the judgment of the criminal court of St. Louis, and for such further proceedings as are not inconsistent with this opinion.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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