EX POST FACTO LAWS 1

THOMPSON v. MISSOURI.

(Supreme Court of United States, 1898. 171 U. S. 380, 18 Sup. Ct. 922, 43 L Ed. 204.)

[Error to Supreme Court of Missouri. Thompson was indicted for murder in 1894, the evidence against him being wholly circumstantial. One issue of fact concerned the authorship of a prescription for strychnine and of a letter addressed to a church organist. Thompson denied that he had written either, and at the first trial certain letters written by him to his wife were admitted in evidence for comparison with the writing in the other documents. Thompson was convicted, but a new trial was ordered on appeal; the Missouri Supreme Court holding that the letters to his wife were erroneously admitted in evidence. Subsequently, in 1895, the legislature passed an act permitting such a comparison to be made. At the second trial in 1896 the letters were again used in evidence, Thompson was again convicted, and the conviction affirmed on appeal.]

Mr. Justice HARLAN.

The contention of the accused is

that, as the letters to his wife were not, at the time of the commission of the alleged offense, admissible in evidence for the purpose of comparing them with other writings charged to be in his handwriting, the subsequent statute of Missouri changing this rule of evidence was ex post facto when applied to his case.

It is not to be denied that the position of the accused finds apparent support in the general language used in some opinions. Mr. Justice Chase, in his classification of ex post facto laws in Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648, includes "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."

In Kring v. Missouri, 107 U. S. 221, 228, 232, 235, 2 Sup. Ct. 443, 27 L. Ed. 506, the question arose as to the validity of a statute of Missouri under which the accused was found guilty of the crime of murder in the first degree, and sentenced to be hanged. That case was tried several times, and was three times in the supreme court of the state. At the trial immediately preceding the last one Kring was allowed to plead guilty of murder in the second degree. The plea was accepted, and he was sentenced to im1 For discussion of principles, see Black, Const. Law (3d Ed.) § 273.

prisonment in the penitentiary for the term of 25 years. Having understood that upon this plea he was to be sentenced to imprisonment for only 10 years, he prosecuted an appeal, which resulted in a reversal of the judgment. At the last trial the court set aside the plea of guilty of murder in the second degree, the accused having refused to withdraw it, and, against his objection, ordered a plea of not guilty to be entered in his behalf. Under the latter plea he was tried, convicted, and sentenced to be hanged. By the law of Missouri at the time of the commission of Kring's offense, his conviction and sentence under the plea of guilty of murder in the second degree was an absolute acquittal of the charge of murder in the first degree. But, that law having been changed before the final trial occurred2 Kring contended that the last statute, if applied to his case, would be within the prohibition of ex post facto laws. And that view was sustained by this court, four of its members dissenting. * *

Considering the suggestion that the Missouri statute under which Kring was convicted only regulated procedure, Mr. Justice Miller, speaking for this court, said: "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." In conclusion it was said: "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." * *

*

The right to such protection was deemed a substantial one,— indeed, it constituted a complete defense against the charge of murder in the first degree, that could not be taken from the accused by subsequent legislation. This is clear from the statement in Kring's Case that the question before the court was whether the statute of Missouri deprived "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 general subject was considered in Hopt v. Utah, 110 U. S. 574, 588, 589, 4 Sup. Ct. 202, 28 L. Ed. 262. Hopt was indicted, tried, and convicted of murder in the territory of Utah, the punishment therefor being death. At the time of the commission of the offense it was the law of Utah that no person convicted of a felony

2 The law was changed before the first plea of guilty of murder in the second degree was made. See Kring v. Missouri, 107 U. S. 236-239, 2 Sup. Ct. 443, 27 L. Ed. 506. Even under the original law the defendant had no right to make this plea, except with the consent of the prosecution. Id.

could be a witness in a criminal case. After the date of the alleged offense, and prior to the trial of the case, an act was passed removing the disqualification as witnesses of persons who had been convicted of felonies; and the point was made that the statute, in its application to Hopt's Case, was ex post facto.

This court said: "The provision of the Constitution which prohibits the states from passing ex post facto laws was examined in Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506. *** That decision proceeded upon the ground that the state Constitution deprived the accused of a substantial 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, Kring could not have been punished with death after his conviction of murder in the second degree, whereas by the abrogation of that law by the constitutional provision subsequently adopted he could thereafter be tried and convicted of murder in the first degree, and subjected to the punishment of death. Thus the judgment of conviction of murder in the second degree was deprived of all force as evidence to establish his absolute immunity thereafter from punishment for murder in the first degree. This was held to be the deprivation of a substantial right which the accused had at the time the alleged offense was committed. But there are no such features in the case before

Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage, for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree or lessen the amount or measure of the proof which was made necessary to conviction when the crime. was committed."

The court added: "The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense, or the ultimate facts necessary to establish guilt, but, leaving untouched the nature of the crime, and the amount or degree of proof essential to conviction, only remove

existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged." *

Applying the principles announced in former cases, without attaching undue weight to general expressions in them that go beyond the questions necessary to be determined, we adjudge that the statute of Missouri relating to the comparison of writings is not ex post facto when applied to prosecutions for crimes committed prior to its passage. If persons excluded upon grounds of public policy at the time of the commission of an offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense. Nor can the new rule introduced by it be characterized as unreasonable; certainly not so unreasonable as materially to affect the substantial rights of one put on trial for crime.

The statute did not require "less proof, in amount or degree," than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt. Whether he wrote the prescription for strychnine, or the threatening letter to the church organist, was left for the jury; and the duty of the jury, in that particular, was the same after as before the passage of the statute. The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of

the accused. Nor did it give the prosecution any right that was denied to the accused. It placed the state and the accused upon an equality, for the rule established by it gave to each side the right to have disputed writings compared with writings proved to the satisfaction of the judge to be genuine. Each side was entitled to go to the jury upon the question of the genuineness of the writing upon which the prosecution relied to establish the guilt of the accused. It is well known that the adjudged cases have not been in harmony touching the rule relating to the comparison of handwritings, and the object of the legislature, as we may assume, was to give the jury all the light that could be thrown upon an issue of that character. We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the rule established by that statute entrenched upon any of the essential rights belonging to one put on trial for a public offense.

Of course, we are not to be understood as holding that there may not be such a statutory alteration of the fundamental rules in criminal trials as might bring the statute in conflict with the ex post facto clause of the Constitution. If, for instance, the statute had taken from the jury the right to determine the sufficiency or effect of the evidence which it made admissible, a different question would have been presented. We mean now only to adjudge that the statute is to be regarded as one merely regulating procedure, and may be applied to crimes committed prior to its passage without impairing the substantial guaranties of life and liberty that are secured to an accused by the supreme law of the land.

Judgment affirmed

HAWKER v. NEW YORK.

(Supreme Court of United States, 1898. 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002.)

[Error to the Court of Sessions of New York City. The defendant had been convicted of the crime of abortion in New York in 1878 and sentenced to ten years imprisonment. A New York statute of 1893, amended in 1895, made it a misdemeanor for any person to practice medicine after conviction of a felony. The defendant was convicted under this statute and the conviction affirmed by the highest state court; final judgment being entered in the said Court of Sessions.]

Mr. Justice BREWER. The single question presented is as to the constitutionality of this statute when applied to one who had been convicted of a felony prior to its enactment.