Ex parte Bethurum

• Decision Date: 31 October 1877
• Citation: 66 Mo. 545
• Parties: EX PARTE BETHURUM.
• Court: Missouri Supreme Court

66 Mo. 545

EX PARTE BETHURUM.

Supreme Court of Missouri.

October Term, 1877.

Petition for Habeas Corpus.

N. C. Kouns for petitioner insisted that the act of March 1st, 1877, ought not to be construed as applying to sentences previously passed, as such construction would make it obnoxious to the inhibition of the constitution against ex post facto and retrospective laws, citing Costin v. Corporation of Washington, 2 Cranch C. C. 254; U. S. v. Hall, 6 Cranch 171; Calder v. Bull, 3 Dall. 386; Cooley Const. Lim. 272, 370; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483.

2. The Supreme Court is a constitutional tribunal, and a statute cannot enlarge its constitutional powers so as to authorize it to sentence a criminal at all, or to modify a criminal sentence, except upon error or appeal. This statute undertakes to give this court power to impose an original sentence where the trial court failed to do so.

J. L. Smith, Attorney-General, for the respondent, insisted that the act is not an ex post facto law, according to the definition given in Calder v. Bull, 3 Dall. 386, and adopted in Fletcher v. Peck, 6 Cranch 87; Ogden v. Saunders, 12 Wheat. 213, 266; Satterlee v. Mathewson, 2 Pet. 380; Cummings v. Missouri, 4 Wall. 277; ex parte Garland, 4 Wall. 333; Huber v. Reily,53 Penn. St. 115; and that the power given by it is virtually part of the habeas corpus act, and is welded on to the jurisdiction conferred by that act.

HENRY, J.

At the November term, 1875, of the Buchanan circuit court, Bethurum was tried and convicted of forgery in the third degree, and sentenced to imprisonment in the penitentiary for a term of eight years, the maximum punishment for that offense being fixed by law at seven years imprisonment in the penitentiary, and he now asks to be discharged from said imprisonment on the ground that it was illegal. It is conceded that under the decisions of this court, in ex parte Page, 49 Mo. 291; ex parte Jilz, 64 Mo. 205, the petitioner is entitled to his discharge, if the act of the General Assembly, approved March 1, 1877, entitled “An act to prevent the discharge of persons by the habeas corpus act, who have been convicted of crime and erroneously sentenced,” be an ex post facto law, or retrospective in its operation, in the sense in which these terms are used in our State constitution. By the terms of the act, it relates to sentences which had been pronounced when it was enacted, as well as to those thereafter to be pronounced. The preamble, reciting that many persons had been erroneously sentenced, and were liable to be discharged at any time, by virtue of the provisions of the habeas corpus act, declared the existence of an emergency requiring the act to be in force and to take effect from and after its passage. The first section provided that “No person shall be entitled to the benefit of the provisions of the habeas corpus act, for the reason that the judgment, by virtue of which such person is confined, was erroneous as to time or place of imprisonment; but in such cases it shall be the duty of the court, or officer, before whom such relief is sought, to sentence such person to the proper place of confinement, and for the proper length of time, from and after the date of the original sentence, and to cause the officer, or other person having such prisoner in charge, to convey him forthwith to such designated place of imprisonment.” The act took effect from and after its passage.

By the constitution of the United States, the several States are inhibited from passing “any ex post facto law, or law impairing the obligation of contracts.” By the 18th section, article 2, of the constitution of this State, the General Assembly is prohibited from passing any ex post facto law, or law impairing the obligation of contracts, or retrospective in its operation. With regard to ex post facto laws, and laws impairing the obligations of contracts, there was no necessity for an inhibition in our State constitution, for under the prohibition in the constitution of the United States, all such laws enacted by the Legislature of a State, would be inoperative and void; but there was no such inhibition in the Federal constitution in regard to retrospective laws, and therefore that clause in the section is to be construed so as to effectuate the purpose of the framers of the constitution. When words, which have long had a technical meaning, as used in statutes and judicial proceedings, are employed in constitutions and statutes, they are to be understood in their technical sense, unless there be something to show that they were employed in a different sense.

The terms ex post facto and retrospective, as employed in statutes and constitutions, had acquired a definite, legal meaning, long before the adoption of our constitution. In Calder v. Bull, 3 Dallas 386, Chase, J., said: “The expressions ‘ ex post facto laws,’ are technical; they had been in use long before the revolution, and had acquired an appropriate meaning by legislators, lawyers and authors.” Blackstone in his Commentaries, 1 Vol. 46, thus defines the meaning of the expression, “ ex post facto law:” “When, after an action, indifferent in itself, is committed, the Legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it.” In Calder v. Bull, 3 Dallas 386, Chase, J., declared an ex post facto law to be one which makes an action done before the passage of the law, criminal, which was innocent when committed, and punishes the individual who had committed it; or which aggravates a crime and makes it greater than it was when committed; or which changes the punishment and inflicts greater punishment than the law annexed to the crime when committed; or which alters the legal rules of evidence, and makes less or different testimony than the law required at the time of the commission of the offense, sufficient to convict the offender. It will be perceived that Judge Chase gave a much broader signification to the expression than was attached to it by Blackstone, and the explanation given in Calder v. Bull, has been accepted generally, and we believe everywhere in the United States, without an exception, where the question has been before the courts. The act of March, 1877, did not make an act criminal which was innocent before its passage; it did not make the crime, of which defendant was found guilty, greater than when he committed it; it did not change the punishment and inflict greater punishment than the law annexed to the crime when he committed it; nor did it alter the legal rules of evidence, and make less or different testimony than the law required when he committed the offense, sufficient to convict him. It merely provides that if sentenced to confinement in a place different from that required by law, the court before whom he might be brought on a habeas corpus, should sentence him to confinement in the proper place, and if sentenced for a longer term than the law authorized, the court should sentence him for the proper time. It simply provided for the correction, by such court, of an error patent upon the record. It is not an “ ex post facto law,” as that expression had been explained by the law writers, and in numerous adjudged cases, before our constitution was adopted.

Is it a retrospective law? All ex post facto laws, and laws impairing the obligation of contracts are, literally, retrospective; but not in the technical sense of that term. Ex post facto laws relate exclusively to crimes and punishments, and criminal procedure. A “law retrospective in its operation,” as the phrase is employed in our bill of rights, is one which relates to civil rights, and proceedings in civil causes. The inhibition as to retrospective laws, in regard to criminal transactions, was full and complete in the inhibition against the passage of ex post facto laws, but as there was nothing in the federal...