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 offence 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 succeeded 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 twenty-five 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 offence which, in the language of Mr. Justice Washington, in United States v. Hall, "in relation to that offence, or its consequences, alters the situation of a party to his disadvantage," is an ex post facto law; and in the language of Denio, J., in Hartung v. The 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 offence 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 will be reversed, and the case 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; and it is

So ordered.

MR. JUSTICE MATTHEWS, with whom concurred MR. CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY, dissenting.

The Chief Justice, Mr. Justice Bradley, Mr. Justice Gray, and myself are unable to concur in the judgment and opinion of the court in this case, and the importance of the question determined constrains us to state the grounds of our dissent. The material facts are these: The plaintiff in error, at March Term, 1875, of the St. Louis Criminal Court, was indicted for murder in the first degree. On his arraignment he pleaded "not guilty." At the November Term of the same year a trial was had, which resulted in a verdict of guilty of murder in the first degree, and a sentence of death. That judgment was reversed on appeal, and twice subsequently there were mistrials. On Nov. 12, 1879, the defendant, by consent of the circuit attorney and leave of the court, withdrew his plea of not guilty and entered a plea of guilty of murder in the second degree. He was thereupon sentenced to imprisonment in the penitentiary for a term of twenty-five years. The prisoner then filed a motion to set aside this judgment and sentence, and to allow him to withdraw the plea of guilty of murder in the second decree and to permit him " to have his original plea of not guilty entered of record to the end that he may have a trial upon the merits of his case before a jury." In support of this motion reasons were assigned, in substance, that he had withdrawn his original plea of not guilty and entered the plea of guilty of murder in the second degree, upon the faith of an understanding previously had with the circuit attorney representing the prosecution, that if he would do so the sentence should not exceed ten years in the penitentiary, which under

standing was violated by the sentence complained of. The court overruled the motion, but on appeal the judgment was reversed on the ground alleged by the prisoner, that he had been misled, and the cause was remanded for further proceedings. On receipt of this mandate, the trial court, the prisoner refusing to withdraw his plea of guilty of murder in the second degree and to enter a plea of not guilty, entertained the motion previously made by him, for refusing to grant which the judgment had thus been reversed, and granted it, setting aside the plea of guilty, and, the prisoner standing mute, ordered a plea of not guilty to be entered. On this plea a trial was had at October Term, 1881, when he was found guilty of murder in the first degree and again sentenced to death. An appeal was prosecuted from this judgment, which, however, was affirmed by the Supreme Court of Missouri, and is brought here for examination by the present writ of error, on the ground that it has been rendered in violation of a right secured to him by the Constitution of the United States.

The right which it is alleged has been violated is supposed to arise in this way. At the time of the commission of the offence in 1875, it was well established as the law of Missouri, by the decisions of the Supreme Court of the State, that "when a person is indicted for murder in the first degree, and is put upon his trial and convicted of murder in the second degree and a new trial is ordered at his instance, he cannot legally be put upon his trial again for the charge of murder in the first degree; he can be put upon his trial only upon the charge of murder in the second degree." State v. Ross, 29 Mo. 32; State v. Smith, 53 id. 139. And it is not denied that a plea of guilty of murder in the second degree, accepted by the State, would have been at that time equally an acquittal of the charge of murder in the first degree, having the same force as to future trials as a conviction of murder in the second degree, although the judgment should be leversed on the application of the prisoner.

On Nov. 30, 1875, the State of Missouri adopted a new constitution, which contained (sect. 23, art. 2) the provision, that, "if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the

prisoner on a proper indictment, or according to correct principles of law."

In the case of State v. Simms, 71 Mo. 538, it was decided that this provision overthrows the rule laid down in the case of State v. Ross, ubi supra, and was "equivalent to declaring that when such judgment is reversed for error at law, the trial had is to be regarded as a mistrial, and that the cause, when remanded, is put on the same footing as a new trial, as if the cause had been submitted to a jury, resulting in a mistrial by the discharge of the jury in consequence of their inability to agree on a verdict."

The rule thus introduced by the Constitution of 1875 was the one applied in the trial of the prisoner, instead of that previously in force; and the contention is, that to apply it in a case such as the present, where the alleged offence was committed prior to the adoption of the new constitution, is to give it operation as an ex post facto law, in violation of the prohibition of the Constitution of the United States.

In examining this proposition it must constantly be borne in mind, that the plea of guilty of murder in the second degree, the legal effect of which, when admitted, is the precise subject of the question, was entered long after the new rule established by the Constitution of Missouri took effect; that the prisoner himself moved to set it aside, and for leave to renew his plea of not guilty, on the ground that he had been misled into making his plea of guilty under circumstances that would make it operate as a fraud upon his rights, if it were permitted to stand; and that, because the court denied this motion, he made and prosecuted his appeal for a reversal of its judgment, in full view of the rule, then in force, of the application of which he now complains, which expressly declared what should be the effect of such a reversal.

The classification of ex post facto laws first made by Mr. Justice Chase, in Calder v. Bull, 3 Dall. 386, 390, seems to have been generally accepted. It is as follows: "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 a crime or makes it greater than it was when committed. 3d, Every law that

changes the punishment, and inflicts a greater punishment than the law 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." This definition was the basis of the opinion of the court in Cummings v. The State of Missouri, 4 Wall. 277, and Ex parte Garland, id. 333, and was expressly relied on in the opinion of the dissenting judges, which says: "This exposition of the nature of ex post facto laws has never been denied, nor has any court or any commentator on the Constitution added to the classes of laws here set forth, as coming within that clause of the organic law." p. 391.

Now, under which of these heads does the controverted rule of the Missouri Constitution fall? It cannot be contended that it is embraced in either of the first three. If in any, it must be covered by the fourth. But what rule of evidence, existing at the time of the commission of the offence, is altered to the disadvantage of the prisoner? The answer made is this: that, at that time, an accepted plea of guilty of murder in the second degree was conclusive proof that the prisoner was not guilty of murder in the first degree, and that it was abrogated, so as to deprive the prisoner of the benefit of it. But while that rule was in force, the prisoner had no such evidence of which he could avail himself. How, then, has he been deprived of any benefit from it? He had not, during the period while the rule was in force, entered any plea of guilty of murder in the second degree, and no such plea had been admitted by the State. All that can be said is, that if, while the rule was in force he had entered such a plea with the consent of the State, its legal effect would have been as claimed, and by its change he has lost what advantage he would have had in such a contingency. But it does not follow that such a contingency would have happened. It was not within the power of the prisoner to bring it about, for it required the concurrence and consent of the State; and it cannot be assumed that, under such a rule and in such a case, that consent would have been given. It is not enough to say that, under a ruling of the court, a party might have lost the benefit of certain evidence,