permitting conviction on the uncorroborated testimony of an accomplice; 27 or providing that where property is owned in common or jointly by two or more persons, the ownership may be alleged to be in either or all of them; 28 or that certain forbidden acts shall, when done by the agent or manager of another in the course of the business in which he is employed, be deemed to have been done by the consent and command of his principal or employer, unless the contrary be proved; 29 or permitting marriage to be proved by circumstantial or presumptive evidence.80 And the same is true of a law which repeals a provision that no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding shall be given in evidence or used against him in any criminal proceeding.31 But a law may be enacted which makes certain matters admissible in evidence,32 or provides that in all questions affecting the credibility of a witness, his general moral character may be given in evidence; 38 or changes the mode of authentication necessary to render admissible testimony given at a preliminary examination in the event of the death, insanity, or absence of the witness; 34 or enlarges the class of persons who may be competent to testify.35

33

A retrospective statute which prevents the accused from taking advantage of immaterial variances between the indictment and the

existing rule in homicide cases and hence not to be ex post facto.

27 Hart v. State, 40 Ala. 32, 88 Am. Dec. 752.

28 Hannahan v. State, 7 Tex. App. 664; Calloway v. State, 7 Tex. App. 585.

29 State v. Bond, 4 Jones' L. (N. C.) 9.

30 State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241.

31 Frisby v. United States, 38 App. Cas. (D. C.) 22.

32 Thompson v. Missouri, 171 U. S. 380, 43 L. Ed. 204, 18 Sup. Ct. 922; People v. Qualey, 210 N. Y. 202, 104 N. E. 138, Ann. Cas. 1916 A 1108, aff'g 157 N. Y. App. Div. 916, 142 N. Y. Supp. 1136.

A law rendering competent writings which were previously incompetent, as a statute rendering

writings, proved to be genuine, admissible for the purpose of comparison with disputed writings. State v. Thompson, 141 Mo. 408, 42 S. W. 949. 33 Robinson v. State, 84 Ind. 452. 34 Permitting the duly authenticated transcript of the minutes of the official stenographer to be used, instead of requiring that the testimony be reduced to the form of a deposition. People v. Qualey, 210 N. Y. 202, 104 N. E. 138, Ann. Cas. 1916 A 1108, aff'g 157 N. Y. App. Div. 916, 142 N. Y. Supp. 1136.

35 Hopt v. People of Utah, 110 U. S. 574, 28 L. Ed. 262, 4 Sup. Ct. 202; Mrous v. State, 31 Tex. Cr. 597, 21 S. W. 764, 37 Am. St. Rep. 834.

Making the wife a competent witness against her husband on a prosecution for abandonment. Wester v. State, 142 Ala. 56, 38 So. 1010.

proof does not violate the constitutional inhibition,36 but the contrary is true where the variance was a material one under the law in force when the offense was committed, and hence to apply the new statute would be to authorize a conviction on different evidence.37

§ 57. Laws affecting punishment-In general. It is a violation of this constitutional provision for the legislature to increase the punishment for an act previously committed,38 or, according to some courts, to provide for a different kind of punishment or punishment in a different manner, where the change does not amount merely to a remission of a separable portion of the punishment prescribed at the time the offense was committed, or a clear mitigation of the

66 Com. v. Hall, 97 Mass. 570.

37 As where it is alleged that the defendant stole a horse and proved that he stole a gelding, and the variance would have been fatal under the law in force when the offense was committed, but was immaterial under the law in force at the time of the trial. Johnson v. State, 16 Tex. App. 402; Valesco v. State, 9 Tex. App. 76.

38 United States. In re Medley, 134 U. S. 160, 33 L. Ed. 835, 10 Sup. Ct. 384; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356; State of Iowa v. Jones, 128 Fed. 626. Alabama. Moore v. State, 40 Ala.

Nebraska. Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825; s. c., 16 Neb. 349, 20 N. W. 289. New York. People v. O'Neil, 109 N. Y. 251, 16 N. E. 68; Ratzky v. People, 29 N. Y. 124, 28 How. Pr. 112; Shepherd v. People, 25 N. Y. 406, 24 How. Pr. 388; Hartung v. People, 26 N. Y. 167; s. c., 22 N. Y. 95.

North Carolina. State v. Broadway, 157 N. C. 598, 72 S. E. 987. North Dakota. State v. French, 32 N. D. 362, 155 N. W. 687.

Oregon. State v. Smith, 56 Ore. 21, 107 Pac. 980.

Texas. Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145.

Wisconsin. State v. Ingersoll, 17 Wis. 631.

And see the other cases cited in the following notes. See also § 51, supra.

punishment.39 So a statute which increases the minimum penalty,40 or the possible penalty 41 for an offense is within the prohibition. And the same has been held to be true of a statute which changes the offense from a misdemeanor to a felony,42 or abrogates a pro

vision giving the jury the right to substitute imprisonment for life for death in capital cases,48 or makes different terms of imprisonment run successively instead of concurrently, or increases the costs to be adjudged against the defendant on conviction, where the nonpayment of costs is made the ground of an increase of punishment,45 or reduces the amount per day allowed to a convict as a credit on his fine and costs, when working out the same.46 But a law which merely remits a portion of the punishment, or otherwise merely mitigates it, does not violate the constitutional provision,47 as where it permits a lesser degree of the same kind of punishment.48 Some

43 Marion v. State, 16 Neb. 349, 20 N. W. 289; Murray v. State, 1 Tex. App. 417.

44 Hannahan v. State, 7 Tex. App. 664.

45 Burch v. State, 55 Ala. 133.

46 Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145.

47 United States. Rooney v. State of North Dakota, 196 U. S. 319, 49 L. Ed. 494, 25 Sup. Ct. 264, 3 Ann. Cas. 76, aff'g 12 N. D. 144, 95 N. W. 513.

49.

Alabama. Moore v. State, 40 Ala.

Illinois. People v. Zito, 237 Ill. 434, 86 N. E. 1041, aff'g 140 Ill. App. 611. Indiana. Davis v. State, 152 Ind. 34, 51 N. E. 928, 71 Am. St. Rep. 322; Hicks v. State, 150 Ind. 293, 50 N. E. 27; Dinckerlocker v. Marsh, 75 Ind. 548.

Iowa. Ware v. Sanders, 146 Iowa 233, 124 N. W. 1081.

Kansas. State v. Tyree, 70 Kan. 203, 78 Pac. 525, 3 Ann. Cas. 1020; In re Petty, 22 Kan. 477.

Massachusetts. Com. v. Wyman, 12 Cush. 237; Com. v. Gardner, 11 Gray 438.

N. C. 419; State v. Kent, 65 N. C. 311.

Oregon. State v. Smith, 56 Ore. 21, 107 Pac. 980.

Pennsylvania. Com. v. Kalck, 239 Pa. 533, 87 Atl. 61.

South Carolina. State v. Cooler, 30 S. C. 105, 8 S. E. 692, 3 L. R. A. 181. And see State v. Williams, 2 Rich. L. 418, 45 Am. Dec. 741.

Texas. McInturf v. State, 20 Tex. App. 335.

This is especially true where the statute gives the defendant the right to decline the ameliorated punishment and elect to be punished under the law as it was when the offense was committed. McInturf v. State, 20 Tex. App. 335.

48 People v. Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572, aff'g 70 Hun 111, 24 N. Y. Supp. 194.

As a statute permitting an alternative punishment by fine, or fine and imprisonment in the county jail, in the discretion of the jury, instead of imprisonment in the penitentiary. Turner v. State, 40 Ala. 21.

Or permitting the jury to substitute life imprisonment for death in all capital cases. McInturf v. State, 20 Tex. App. 335.

Or leaving out the minimum limitation, so that the punishment may be imprisonment for a less, but not for a

courts have held that a change of punishment from death to imprisonment for life is a mitigation of punishment and hence is not unconstitutional, while others have held to the contrary.50 A change of punishment from whipping to imprisonment has been held not to increase the punishment.51

§ 58. Manner and time of executing death penalty. Mere changes in the details of the execution of the death penalty, affecting no substantial right of the prisoner, are unobjectionable, as, for example, a statute prescribing the time of day when, and the manner in which the sentence shall be executed,52 or changing the place of execution,58 or the number of witnesses permitted to be present,54 or changing the manner of producing death from hanging to electrocution.55 An extension of the time within which execution may take