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ings. A statute regiulating criminal proceedings is valid. Perry v. Comm. 3 Gratt. 632; Manning v. State, 14 Tex, 402; Walston v. Comm. 16 B. Mon. 15; People v. Mortimer, 46 Cal. 114.
A statute allowing the State a certain number of peremptory challenges is not an ex post facto law. Walston v. Comm. 16 B. Mon. 15; State v. Ryan, 13 Minn. 370.
A statute reducing the number of peremptory challenges is not an ex post facto law. Perry v. Comm. 3 Gratt. 632; Reynolds v. State, i Geo.
A statute erecting a new tribunal to try past offenses is not an ex post facto law. Comm. v. Phillips, 28 Mass. 28; State v. Sullivan, 14 Rich. 281.
A statute changing the mode of summoning juries is not an ex post facto law. Perry v. Comm. 3 Gratt. 632.
A statute allowing the counsel for the State to open and close the argument before the jury, instead of alternating with the counsel for the defense, is valid. People v. Mortimer, 46 Cal. 114.
A statute changing the place of trial from one county to another, in the same district, or even to a different district from that in which the offense was committed, or the indictment found, is not an ex post facto law, though passed subsequent to the commission of the offense, or the finding of the indictment. Gut v. State, 9 Wall. 35.
A statute which deprives the accused of the right to object to an incompetent grand juror is an ex post facto law. Martin v. State, 22 Tex. 214.
A statute which operates only on the forms of the proceeding, rendering a defective indictment valid, is not unconstitutional, for it only provides the means by which a criminal may be brought to answer for that which was a crime when committed. Comm. v. Bean, Thach. Crim. Cas. 85; State v. Sears, Phil. 146.
A statute allowing an amendment of an indictment to correct a misnomer of the accused, is not an ex post facto law, for it merely has reference to the mode of conducting the proceedings on the prosecution. State v. Manning, 14 Tex. 402.
Any change which is referable to prison discipline, or penal administration, as its primary object, may also take effect upon past as well as future offenses, such as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, or the like. Changes of this sort may operate to increase or mitigate the severity of the punishment, but do not raise any question under this provision. Hartung v. People, 22 N. Y. 95.
To aggravate the punishment of a crime by a law posterior to its commission, is forbidden by the same reason that restrains the legislature from converting into a crime an act innocent when committed. Dickinson v. Dickinson, 3 Murph. 327.
A law which increases the punishment is ex post facto, although it does not change the manner of the punishment. Shepherd v. People, 25 N. Y. 406.
A statute which adds a new punishment, or increases an old one, for an offense committed before its adoption, is an ex post facto law. Ross v. Riley, 19 Mass. 165; State v. Salomons, Riley, 99; Hartung v. People, 22 N. Y. 95; Hartung v. People, 26 N. Y, 167 ; Wilson v. 0. & M. R. R. Co. 64 Ill. 542.
A statute which imposes a different punishment from that which existed at the time of the commission of the offense, is not an ex post facto law, if the punishment is not increased. Strong v. State, 1 Blackf. 193 ; Comm. v. Gardner, 77 Mass. 438 ; contra, Hartung v. People, 22 N. Y.95; Shepherd v. People, 25 N. Y. 406 ; State v. McDonald, 20 Minn, 136.
No law is considered ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction.
Calder v. Bull, 3 Dall. 386 ; S. C. 2 Root, 350; State v. Arlin, 39 N. H. 179.
It is perfectly competent for the legislature to remit any separable portion of the prescribed punishment. For instance, if the punishment were fine and imprisonment, a law which dispenses with either the fine or the imprisonment may be applied to existing offenses. The term of imprisonment may be reduced, or the number of stripes diminished in cases punishable in that manner. Hartung v. People, 22 N. Y. 95.
A statute changing the punishment for larceny from whipping and imprisonment in a jail to confinement in the penitentiary, mitigates the punishment, and is not ex post facto. State v. Kent, 65 N. C. 311.
A statute which provides a mitigated alternative punishment at the discretion of the jury, is not ex post facto. Turner v. State, 40 Ala. 21.
The substitution of imprisonment for life in place of death, is in the eye of the law a mitigation of the punishment. Comm. v. Gardner, 77 Mass. 438; contra, Hartung v. People, 22 N. Y. 95.
A statute which reduces the punishment, may take away from the accused the privilege of having counsel assigned him, and of being furnished with process to compel the attendance of witnesses. State v. Arlin, 39
N. H. 179.
A statute imposing an additional punishment for an offense committed after the passing of the statute, to be inflicted by the court upon coming to the knowledge of certain facts, is not ex post facto, although those facts are the commission of an offense before the passing of the statute. Ross v. Riley, 19 Mass. 165; Rand v. Comm. 9 Gratt. 738; Plumbly v. Comm. 43 Mass. 413; Ex parte Gutierrez, 45 Cal. 430.
A statute authorizing the jury to assess the amount of the fine to be imposed or punishment to be inflicted, only provides a different mode of ascertaining the amount of the fine or the duration of the imprisonment by substituting the opinion of the jury for that of the judge, and is not an ex post facto law. Holt v. State, 2 Tex. 363; Dawson v. State, 6 Tex. 347.
A statute repealing an amnesty act is an ex post facto law, for it renders that criminal which was not so before its adoption. State v. Keith, 63 N. C. 140.
A statute extending the time for prosecuting misdemeanors can not revive a right of prosecution which was barred at the time of its passage. State v. Sneed, 25 Tex. Supp. 66.
A law prohibiting the making of certain contracts is valid. Churchman v. Martin, 54 Ind. 380.
A statute allowing a divorce for an act which was no ground for granting a divorce at the time when it was committed, is an ex post facto law. Dickinson v. Dickinson, 3 Murph. 327; contra, Carson v. Carson, 40
A statute allowing the court in granting a divorce to decree that the guilty party shall not contract marriage with any other person during the lifetime of the other party, is not an ex post facto law. It simply leaves the party under the disability of his marriage contract, and does not impose any new punishment or penalty. Elliott v. Elliott, 38 Md. 357.
A statute 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 to convict the offender, is an ex post facto law. In a judicial inquiry no allegation can be taken as a fact unless it be admitted or proved. Unproved, it is the same as if it did not exist. De non apparentibus et de non existentibus eadem est ratio. If a person therefore is charged with the commission of an act which can be proved only by testimony of a particular kind or grade, a law passed for the purpose of admitting less testimony with a view to make conviction more easy, is the same as a law which makes an innocent act criminal. State v. Bond, 4 Jones, N. C. 9; Hart v. State, 40 Ala. 32.
A statute which permits marriage to be established by indirect evidence, when prior thereto it could only be established by direct evidence, is an ex post facto law. State v. Johnson, 12 Minn. 476.
A State law imposing a tax upon transactions during a preceding year, is not an ex post facto, although it imposes a penalty for failing to render an account thereof. State v. Bell, Phillips, 76.
A statute suspending the right of a party who has engaged in a rebellion against the Federal Government, to continue or prosecute a suit during the continuance of the rebellion, is an ex post facto law. Davis v Pierce, 7 Minn, 13; Keough v. McNitt, 7 Minn. 30 ; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, 8 Minn. 117.
A statute which deprives a citizen of the right to vote, unless he will take an expurgatory oath that he did not do a certain act prior to the passage thereof is valid, for the State has full powers to pass laws restrictive and exclusive, for the preservation or promotion of the common interests, as political and social emergencies may from time to time require, though in certain cases disabilities may directly flow as a consequence. Anderson v. Baker, 23 Md. 531 ; Blair v. Ridgley, 41 Mo. 63; Randolph v. Good, 3 W. Va. 551 ; State v. Neal, 42 Mo. 119; contra, Green v. Shumway, 39 N. Y. 418.
A statute which deprives a person of the right to hold certain offices and trusts, and to pursue certain avocations, unless he will take an expurgatory oath that he did not do a certain act prior to the passage thereof, is an ex post facto law. Cummings v. State, 4 Wall. 277; S. C. 36 Mo. 263; Murphy & Glover Cases, 41 Mo. 339; State v. Heighland, 41 Mo. 388; contra, State v. Garesche, 36 Mo. 256.
A statute which prevents a party from holding office under the State government, unless he will take an expurgatory oath that he did not do a certain act prior to the passage thereof, is not an ex post facto law. State v. Woodson, 41 Mo. 227.
A statute depriving a party of the right to a rehearing of an attachment suit unless he will take an oath that he has not theretofore done certain acts, is an ex post facto law. Pierce v. Carskadon, 16 Wall. 234; Kyle v. Jenkins, 6 W. Va. 371; Ross v. Jenkins, 7 W. Va. 284; Lynch v. Hoffman, 7 W. Va. 553; S. C. 7 W. Va. 578.
A statute which prohibits manufacturers and others who have manufactured or bought liquor before its passage from selling it or keeping it for sale within the State, is not an ex post facto law, for it does not retroact except by the civil consequence of lessening the value of the property. The statute, to meet the well settled definition, must not only retroact, but must retroact by way of criminal punishment upon that which was not a crime before its passage. State v. Paul, 5 R. I. 185; State v. Keeran, 5 R. I. 497.
An act which prescribes conditions under which alone a thing may be used in future, can not be ex post facto. It attaches neither guilt nor pun
ishment to a past act, but looks forward to future acts, and prohibits the future use of the thing. Evans v. Jordan, 1 Brock. 248; S. C.9 Cranch, 199; Evans v. Weiss, 2 Wash. C. C. 342 ; Evans v. Robinson, i Car. L. Rep. 209.
A law regulating escheats, which does not refer to crimes, pains or penalties, is not within the meaning of this prohibition. White v. Wayne, T. U. P. Charlt. 94.
A law that repeals a prior law before the performance of the acts necessary to give a vested right under it, is not an ex post facto law. Vanhorne v. Dorrance, 2 Dall. 304.
A law which grants a new trial in a case where the time to appeal from the decree has expired, is not an ex post facto law. Calder v. Bull, 3 Dall. 386; S. C. 2 Root, 350.
Obligation of Contracts.
Kone which impairs its obligation. It is a law which impairs the obligation
of contracts, and not the contracts themselves, which is interdicted. The term “obligation” was well considered and weighed by those who framed the Constitution, and was intended to convey a different meaning from what the prohibition would have imported without it. Ogden v. Saunders, 12 Wheat. 213.
A contract is defined to be an agreement to do or not to do some particular thing. Ogden v. Saunders, 12 Wheat. 213; Sturgess v. Crowninshield, 4 Wheat. 122 ; Woodruff v. State, 3 Ark. 285; Trustees v. Rider, 13 Conn. 87; Robinson v. Magee, 9 Cal. 81; Farnsworth v. Vance, 2 Cold. 108.
The obligation of a contract can not commence before the date of the contract. Blair v. Williams, 4 Litt. 34.
The obligation of the contract continues until the debt is paid or the act performed. Baily v. Gentry, 1 Mo. 164.
Any law which impairs the obligation of the contract, whether the contract remains in its original shape or has been merged in a judgment, is within the operation of this provision. Whatever shape the contract may assume, the obligation remains until it is actually discharged, or until the law will imply its discharge from circumstances. Forsyth v. Marbury, R. M. Charlt. 324.
The great principle intended to be established by the Constitution, was the inviolability of the obligation of contracts as the obligation existed and was recognized by the laws in force at the time the contracts were made.