subsequent prosecution for the offenses as to which the jury disagreed and on account of which it was regularly discharged would not constitute a second jeopardy." § 154. Same-Disagreement of the jury-Discharge for bias, disqualification or corruption.-Courts of justice are invested with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and the defendant is not thereby twice put in jeopardy within the meaning of the fifth amendment to the constitution.47 Whether there is a manifest necessity for the discharge of the jury in order to prevent a defeat of the ends of public justice is a question to be finally decided by the presiding judge in the sound exercise of his discretion, taking all the circumstances of the case into consideration.48 This power of the court may be exercised where the jury are unable to agree; 49 or, when the trial is proceeding, the jury having been sworn and a witness examined, the fact that one of the jury is disqualified by having been a member of the grand jury that found the indictment, becomes known to the court; 50 or when, during the progress of the trial, and after the jury have been empanelled and sworn, and witnesses have been examined, it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused.51 46 Selvester v. United States, 170 U. S. 262, 271 (42:1029); Putnam v. United States, 162 U. S. 687 (40:1118). 47 Thompson v. United States, 155 U. S. 271, 283 (39:146); United States v. Perez, 9 Wheat. 579 (6:165); Simmons V. United States, 142 U. S. 148 (35:968); Logan v. United States, 144 U. S. 2C3 (36:429); Ex parte Lange, 18 Wall. 201 (21:887). 48 Logan v. United States, 144 U. S. 263 (36:429); United States v. Perez, 9 Wheat. 579 (6:165); Simmons v. United States, 142 U. S. 148 (35:968). 49 Logan v. United States, 144 U. S. 263 (36:429); United States v. Perez, 9 Wheat. 579 (6.165). 50 Thompson v. United States, 155 U. S. 271, 283 (39:146). 51 Simmons v. United States, 142 U. S. 148 (35:968). In the lead § 155. Ex post facto laws-Inhibition applies only to legislation concerning crimes.-There is a constitutional inhibition. upon both the federal 52 and state 53 governments, against the passing of ex post facto laws. Such laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively. The debates in the constitutional convention, upon this provision of the constitution, show that the phrase ex post ing case in America on this subject. the jury, being unable to agree, were discharged by the court from giving any verdict upon the indictment, without the consent of the prisoner or of the attorney for the United States; the prisoner's counsel, thereupon, claimed his discharge as of right, and, there being a division in the opinions of the judges, the question was certified to the supreme court, in answering which that court, speaking by Justice Story, said: "The question, therefore, arises, whether the discharge of the jury by the court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offense. If it be, then he is entitled to be dis charged from custody; if not, then he ought to be held in imprisonment until such trial can be had. We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving a verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial." United States v. Perez, supra. 52 U. S. Const. art. I, sec. 9, cl. 3. 53 U. S. Const. art. I, sec. 10. facto laws was understood in a restricted sense, relating to criminal cases only, and the description of Blackstone of such laws was referred to for their meaning. This signification was adopted in the supreme court shortly after its organization, in opinions carefully prepared, and has been repeatedly announced since that time. The same words are used in the constitutions of many of the states, and in the opinions of their courts, and by writers upon public law, and are uniformly understood in this restricted sense.54 § 156. Same-Reason for the constitutional inhibition.—The provision of the constitution inhibiting the passing of ex post facto laws, like many other guaranties of that instrument, originated in the settled purpose and policy of the founders of the government to secure the people of this country from the invasions of the individual rights of life, liberty and property which had been so frequent in the judicial and constitutional history of England. It was prompted by the memory of that long debauch of parliamentary and judicial crimes in that country, which must ever shock the moral sense of mankind. The inhibition had its origin in a knowledge of the fact that the parliament of Great Britain had claimed and exercised the power to pass ex post facto laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting capital, and the latter lesser punishment. Those acts were legislative judgments, and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason when committed; at other times, they violated the established rules of evidence, in order to supply a deficiency of legal proof, by admitting as sufficient for conviction one witness, when the existing law required two, or by receiving depositions and ex parte affidavits, or evidence without oath, by allowing the wife to testify against the husband, or by receiving other illegal testimony which the courts of justice would not admit; at other times, they inflicted punishments, where the party was not, by law, liable to any punishments; and in other cases they inflicted 54 Watson v. Mercer, 8 Pet. 88 (8:876); Locke v. New Orleans, 4 Wall. 172 (18:334); Calder v. Bull, 3 Dall. 386 (1:648); Baltimore & S. R. R. Co. v. Nesbit, 10 How. 395 (13:469); Carpenter v. Pennsylvania, 17 How. 456 (15:127); Re Sawyer, 124 U. S. 200 (31:402). greater punishment than the law annexed to the offense. The ground relied on for the exercise of such legislative power was the plea, that the safety of the kingdom demanded the death, or other punishment of the offender; and with but few exceptions, the advocates of such laws were stimulated by personal ambition or resentment and vindictive malice. To prevent such and similar acts of violence and injustice, and to secure to every person charged with crime a fair and impartial trial, according to known, certain and fixed rules of law, evidence and procedure, antecedently established, this constitutional inhibition was imposed upon both state and federal governments.55 § 157. Same-Defined.-An ex post facto law within the meaning of the constitution may be defined as follows: (1) A law which, in its operation, makes that criminal which was not so at the time the action was performed; or (2) which aggravates the crime or makes it greater than it was when committed; or (3) which changes the punishment and inflicts a greater punishment than was annexed to the crime when committed, or which, in relation to the offense or its consequences, alters the situation of a party to his advantage; or (4) which 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; 50 or (5) which takes away from the accused, what, by the law when the crime was committed, was a good defense to the crime charged." A provision in a state constitution, denying to a person charged with the crime of murder in the first degree, the benefit of the state law as it was at the time of the commission of the crime, under and by virtue of which a conviction of murder in the second degree was an acquittal of murder in the first degree, even though such judgment of conviction be subsequently reversed, is held by the supreme court to be in conflict with the constitutional inhibition; the decision proceeding upon the ground that such a provision in a state constitution deprives the accused of a substantial 56 55 Calder v. Bull, 3 Dall. 386 (1:648). 56 Calder v. Bull, 3 Dall. 386 (1:648). 57 United States v. Hall, 2 Wash. 366, Fed. Cas. 15285; Kring v. Missouri, 107 U. S. 221, 251 (27:506). right which the law gave him when the offense was committed, and, therefore, in its application to that offense and its consequences, altered the situation of the party to his disadvantage. By the law as established when the offense was committed, the accused could not have been convicted of murder in the first degree after his conviction of murder in the second degree; whereas, by the abrogation of that law by a constitutional provision subsequently adopted, if such abrogation should be held valid as to his crime, he could thereafter be tried and convicted of murder in the first degree, and punished accordingly; and thus the judgment of conviction of murder in the second degree would be deprived of all force as evidence to establish his immunity thereafter from punishment for murder in the first degree. Such a proceeding has been held to be a deprivation of a substantial right which the accused had at the time the alleged offense was committed.58 § 158. Same-Change in the law of procedure. The inhibition upon the passage of ex post facto laws does not give a person charged with crime a right to be tried in all respects, by the law in force when the crime charged was committed. The mode of trials is always under legislative control, subject only to the condition that the legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments.59 A change in the law as to the qualification of jurors, or the competency of witnesses, permitting the crime charged to be established by witnesses who by the law at the time the offense was committed were incompetent to testify in any case whatever, is not within the constitutional inhibition." But the legislature cannot, under the guise of regulating procedure, deprive a person accused of crime of any substantial right which the law secured to him at the time the crime was committed; for a law which is one of procedure may be obnoxious as an ex post facto law.62 58 Kring v. Missouri, 107 U. S. 221 (27:506); Hapt v. Utah, 110 U. S. 574, 590 (28:262). 59 Gibson v. Mississippi, 162 U. S. 565, 592 (40:1075); Hapt v. Utah, 110 U. S. 574, 589 (28:262). 60 Gibson v. Mississippi, 162 U. S. 565, 592 (40:1075). 61 Hapt v. Utah, 110 U. S. 574, 598 (28:262). 62 Kring v. Missouri, 107 U. S. 221, 251 (27:506). |