State v. Malloy

• Decision Date: 07 April 1913
• Citation: 78 S.E. 995,95 S.C. 441
• Parties: STATE v. MALLOY.
• Court: South Carolina Supreme Court

78 S.E. 995

95 S.C. 441

STATE v. MALLOY.

Supreme Court of South Carolina

April 7, 1913

Appeal from General Sessions Circuit Court of Marlboro County; T. H Spain, Judge.

"To be officially reported."

The following are the exceptions referred to in the opinion:

"(1) The court erred in overruling the challenge to the array of the grand jury and in holding that it was a legal grand jury, when it was drawn from a list not made up according to law, as shown by the admitted facts set out in the plea and they deprived the defendant of his right to be tried on a bill duly found by a legal grand jury, in violation of the Constitution of the United States and of this state.

"(2) The court erred in refusing to quash the indictment on the ground that it was found by an illegal grand jury, and thereby deprived defendant of the right, given him by the Constitution of this state and of the United States, to be tried on a valid indictment found by a legal grand jury.

"(3) The court erred in overruling the challenge to the array of the jury as being illegally drawn from lists illegally made up, and thereby he deprived defendant of his right, guaranteed by the Constitution of this state and of the United States, to be tried by a jury of his peers, legally drawn and impaneled.

"(4) The court erred in overruling the plea in bar to the infliction of the death penalty by electrocution and the motion in arrest of judgment, for the reason that when the crime was charged to have been committed the penalty was death by hanging, whereas, the penalty of death by electrocution was substituted by the act of February 17, 1912 [27 St. at Large, p. 702], and was ex post facto as to him; and the imposition of the sentence was in violation of the Constitution of the United States and of this state, prohibiting the passage of ex post facto laws.

"(5) The court erred in allowing the witness Stephen Toms, over the objection of defendant's counsel, to state that he had told the same story to one Collins before he told the same in Mr. Evans' office; the same being an effort to corroborate the witness by the fact that he had made the same statement elsewhere, and being incompetent and prejudicial and self-serving.

"(6) The court erred in charging that 'the opinion of experts is like any other testimony in the case, and must be weighed by the jury as other facts are considered,' it being a charge on the facts, and an invasion of the province of the jury, whose sole province is to weigh the evidence; and the court cannot direct it as to the method of weighing any kind of evidence.

"(7) The court erred in charging the jury that 'the free and voluntary confession of one accused of crime is competent evidence to be considered by the jury in the determination of his guilt or innocence,' the same being prejudicial, in that there had been proven alleged confession of the defendant, and the charge tended to impress the jury that such alleged confessions were made, whereas, they were disputed; and the competency of evidence is passed upon when it is admitted, and its use should not be commented upon in the charge, the same being a charge on the facts.

"(8) The court erred in not charging the law of manslaughter, as there were circumstances which might have indicated a case of manslaughter, and the same should have been defined to the jury.

"(9) The court erred in holding the jurors competent who had formed and expressed an opinion from the evidence given at the coroner's inquest, when it was likely that the evidence would be the same on the trial, and in not excluding them for that reason.

"(10) The court erred in standing aside the juror R. B. Crosland, when the only charge was that he had been by mistake bound as a witness for the defense."

Stevenson, Stevenson & Prince, of Bennettsville, for appellant. J. Monroe Spears, Sol., of Darlington, for the State.

GARY C.J.

The defendant was indicted and tried in July, 1912, for the murder of Prentiss Moore, on the 24th of November, 1910, and the jury rendered a verdict of guilty, whereupon the court sentenced him to be electrocuted on the 9th of August, 1912, in the manner provided by the act approved the 17th of February, 1912 (27 St. at Large, p. 702), which will be incorporated in the report of the case, together with section 946 of the Criminal Code of 1912, which prescribes the manner in which a person shall be hanged. The defendant appealed upon exceptions, which will be reported.

The first question that will be considered is whether the said act which changed the punishment for murder from death by hanging to death by electrocution was unconstitutional, on the ground that it was an ex post facto law as to him. Section 109, Criminal Code of 1902, is as follows: "Whoever is guilty of murder shall suffer the punishment of death: Provided, however, that in each case where the prisoner is found guilty of murder, the jury may find a special verdict recommending him or her to the mercy of the court, whereupon the punishment shall be reduced to imprisonment in the penitentiary with hard labor during the whole lifetime of the prisoner." Prior to the act of 1912 the mode of execution, when the prisoner was sentenced for murder, was by hanging.

In Cooley's Constitutional Limitations, pages 319, 320, the author quotes with approval, the following language of Chase, J., in the leading case of Calder v. Bull, 3 Dall. (Pa.) 386, 1 L.Ed. 648, as to ex post facto laws: "I will state what laws I consider ex post facto, within the words and the intent of the prohibition: First, every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; second, every law that aggravates a crime, or makes it greater than it was when committed; third, every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed; fourth, 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. All these and similar laws are manifestly unjust and oppressive. *** But I do not consider any law 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." The last sentence is quoted with approval, in State v. Richardson, 47 S.C. 166, 25 S.E. 220, 35 L. R. A. 238.

In the case of Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, it was held that any law is an ex post facto law, within the meaning of the Constitution, passed after the commission of a crime charged against a defendant, which in relation to that offense alters the situation of the party to his disadvantage; and no one can be criminally punished, except in accordance with the law of force when the offense was committed. In that case the court quoted with approval, the following language from the case of Hartung v. People, 22 N.Y. 95: "It is highly probable that it was the intention of the Legislature to extend favor rather than increased severity, towards the convict and others in her situation; and it is quite likely that, had they been consulted, they would have preferred the application of this law to their cases rather than that which existed when they committed the offenses of which they are convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country, except according to a law prescribed for his government before the imputed offense was committed, and which existed as a law at that time. It would be useless to speculate upon the question whether this would be so upon the reason of the thing, and according to the spirit of our legal institutions, because the rule exists in the form of an express written precept, the binding force of which no one disputes. No state shall pass any ex post facto law is the mandate of the Constitution of the United States." The court also quoted with approval the following language of Mr. Justice Washington, in United States v. Hall, 2 Wash. C. C. 366, Fed. Cas. No. 15,285: "An ex post facto law is one which in its operation makes that criminal or penal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense, or its consequences alters the situation of a party, to his disadvantage."

In Murphy v. Commonwealth, 172 Mass. 264, 52 N.E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266, it is said: "The objection to ex post facto legislation consists in the uncertainty which would be introduced thereby into legislation of a criminal or penal character, and the injustice of punishing an act which was not punishable when done, or of punishing it in a different manner than that in which it was punishable when done. But not all retroactive legislation is unconstitutional as being ex post facto. The question in each case is whether it will increase the penalty, or operate to deprive a party of substantial rights or privileges to which he was entitled *** when the offense was committed, or, 'in short, in relation to the offense and its consequences, will alter the situation of a party to his disadvantage." D' See, also, notes to the case of Rooney v. North Dakota, 196 U.S. 319, 25 S.Ct. 264, 49 L.Ed. 494, reported in 3 Ann. Cas. 76.

A statute which merely regulates the manner in which the execution shall be conducted, by prescribing the time and manner of the execution and the number and character of the witnesses, is not ex post facto, though it applies to offenses committed...