Armstrong v. Minkus

• Decision Date: 09 November 1908
• Citation: 93 Miss. 621,47 So. 467
• Court: Mississippi Supreme Court
• Parties: WILLIAM H. ARMSTRONG v. LEO MINKUS

47 So. 467

93 Miss. 621

WILLIAM H. ARMSTRONG v. LEO MINKUS

Supreme Court of Mississippi

November 9, 1908

October 1908

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Mrs Minkus, appellee, was plaintiff in the court below Armstrong, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Appellee recovered a judgment against appellant in the state of Tennessee for money lost by her husband in dealing with appellant in "future" transactions. She brought a suit on this judgment in the circuit court of Lee county Miss. On the trial of the case, that court overruled a demurrer to the defendant's plea in bar. On appeal the supreme court affirmed the judgment of the circuit court because Code 1906, § 2303, authorizing the wife or children of one paying money on a "future" transaction to recover it, was not operative when the suit was begun. See Minkus v. Armstrong, 90 Miss. 751, 44 So. 32, 12 L. R. A. (N. S.) 873. The decision of the supreme court, however, was without prejudice to the right of Mrs. Minkus to bring another suit, and she brought the present action.

Affirmed.

Anderson & Long for appellant.

Every question involved in this case is res adjudicata, except one, and that is whether under Code 1906, § 2303, the wife is entitled to recover the gambling losses of her husband.

Code 1906, § 2303 was passed and went into effect after the transactions between the husband of Mrs. Minkus and Armstrong, in the state of Tennessee; and after she had brought suit in that state and recovered judgment. At the time those transactions took place, and at the time of the recovery of the judgment in Tennessee, as well as at the time the first suit was brought on the judgment in this state, there was no law in this state authorizing either Minkus or his wife to recover his gambling losses. Is it competent for the legislature to pass a law, after the act, authorizing such a recovery? Such a statute is condemned by sec. 16 of our constitution, and sec. 10 of art. 1 of the constitution of the United States, prohibiting the passage of ex post facto laws.

At the time of the gambling transactions between Minkus and Armstrong, the Tennessee statutes, as well as the statutes of Mississippi, condemned such transactions as criminal; and the Tennessee statute went further and authorized the recovery, under certain circumstances of the money lost, by the loser, his wife and others; while the Mississippi statute did not authorize such recovery. Section 2303 of the Code, subsequently added an additional penalty to that imposed for the criminal offense, by authorizing the wife to recover the losses. Certainly the right given the wife by section 2303 of our code is the imposition of an additional penalty. It is a penal statute. Before the passage of such statute, the wife had neither a legal nor equitable claim to the losses.

An ex post facto law is one, which in its operation, makes that criminal or penal, which was not so at the time the act was committed, or which increases the punishment, or in short, which in relation to the offense or its consequences, alters the situation of the party to his disadvantage." 12 Am. & Eng. Ency. of Law (2d ed.) 525 and notes.

"It is well settled that the phrase 'ex post facto' as used in the constitution of the United States and the constitutions of several states, applies only to penal and criminal statutes which impose punishment or forfeitures, and not to such civil statutes as affect private rights retrospectively." 12 Am. & Eng. Ency. of Law, (2d ed.), 526 and notes.

"Generally speaking, if after the commission of an offense, a statute is passed, which in relation to such offense or its consequences, alters the situation of the person accused or the commission thereof, to his disadvantage, such statute is unconstitutional." 12 Am. & Eng. Ency. of Law, (2d ed.) 532.

Where, however, the statute regulates only the mode of procedure in the prosecution of antecedent crimes, it is not ex post facto in the sense of the constitution; and it is within the power of the legislature to change the form and method of procedure, provided such statute does not change the situation of the accused to his disadvantage. "But a statute which takes from the accused, a substantial right given to him by law, in force at the time to which his guilt relates, is ex post facto in its nature and operation, and a statute of that kind cannot be sustained simply because in a general sense it may be said to regulate procedure. 12 Am. & Eng. Ency. of Law, (2d ed.) 533, 534.

"If it (the law claimed to be ex post facto) shall subject an individual to a pecuniary penalty, for an act which, when done, involved no responsibility, or if it deprives a party of any valuable right, like the right to follow a calling, for acts which were innocent, or at least not punishable by law when committed, the law will be ex post facto in the constitutional sense, notwithstanding it does not in terms declare the acts to which the penalty is attached, criminal." Cooley's Const. Lim. (5th ed.) 323, 324.

The definition of "ex post facto laws" given by Justice Chase in Calder v. Bull, 3 Dallas 386, was approved by our supreme court in the following language:

"First, every law that makes an act done before the passage of the law, and which was innocent when done, criminal;

Second, every law that aggravates the 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...