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effect the cases of the State v. Ball, 27 Mo. 324; State v. Smith, 53 id. 139.

Blackstone says: "The plea of autrefoits convict, or a former conviction for the same identical crime, though 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, autrefoits 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 offences differ in coloring and degree." Bla. Com. Book 4, 336. See State v. Norvell, 2 Yerg. (Tenn.) 24; Campbell v. The State, 9 id. 333, 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 her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offences committed after its enactment. The question here is, Does it deprive the defendant of any right of defence which the law gave him when the act was committed so that as to that offence 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 offence 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 offence, be an ex post facto law. If passed after the commission of the offence, it is as to that ex post facto, though whether of the class forbidden by the Constitution may depend on other

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matters. But so far as this depends on the time of its enactment, it has reference solely to the date at which the offence 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 offence, 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 offence 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. lxxxiv. And the State of Virginia accompanied her ratification by the recommendation of an amendment embodying such a bill. 3 Elliot's Debates, 661.

The feeling on this subject led to the adoption of the first ten 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 factò laws, and laws impairing the obligation 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 law impairing the obligation of contracts" were added to give security to rights resting in contracts. 2 Bancroft's History of the Constitution, 213.

Sir Thomas Tomlin, in that magazine of learning, 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 was delivered

by Mr. Justice Chase, and its main purpose was to decide that the provision had no application to acts concerning civil rights. It, 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. "1st, Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d, Every law that aggravates the crime or makes it greater than it was when committed. 3d, Every law that changes the punishment and inflicts a greater punishment than was annexed to the crime when committed. 4th, 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 offence in order to convict the offender." Again he says: "But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal 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 offence or its consequences, alters the situation of

a party to his disadvantage." United States v. Hall, 2 Wash. 366.

He adds, by way of application to that case, which was for a violation of the embargo laws: "If the enforcing law applies to this case, there can be no doubt that, so far as it takes away or impairs the defence 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 take away what, by the law of the State when the crime was committed, was a good defence to the charge of murder in the first degree.

In the subsequent cases of Cummings v. The State of Missouri 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, offences committed before its passage, and because it instituted a new rule of evidence in aid of conviction. This court was divided in that case, the minority being of opinion that the act in question was not a crimes act, and inflicted no punishment, in the judicial sense, for any past crime, but they did not controvert the proposition that if the act had that effect it was an ex post facto law.

In these cases we have illustrations of the liberal construction which this court, and Mr. Justice Washington in the Circuit Court, gave 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

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