In re Wright

• Decision Date: 24 June 1891
• Citation: 3 Wyo. 478,27 P. 565
• Parties: In re WRIGHT
• Court: Wyoming Supreme Court

27 P. 565

3 Wyo. 478

In re WRIGHT

Supreme Court of Wyoming

June 24, 1891

Application of Leonard Wright for a writ of habeas corpus. Denied.

Petition remanded.

Donzelmann & Van Orsdel, for petitioner.

Charles N. Potter, Atty. Gen., for the State.

GROESBECK C. J. CONAWAY and MERRELL, JJ., concur.

OPINION

GROESBECK, C. J.

This is a hearing upon the demurrer to the answer and return of A. D. Kelley, sheriff of Laramie county, to the petition for the writ of habeas corpus, and to the writ. It is admitted that the demurrer raises all the questions involved, and that the decision upon it will dispose of the entire case. The answer and return of the sheriff show that the petitioner, Leonard Wright, is restrained of his liberty by the said sheriff in the jail of said Laramie county, under a sentence of the district court of said county, for the term of two years and six months, under his plea of guilty of an assault with an attempt to commit rape. The defendant was informed against by the county and prosecuting attorney of said county for the crime of rape, under the provisions of the law passed by the first legislature of the state of Wyoming, approved January 10, 1891, entitled "An act to change and regulate the grand jury system by reducing the number of grand jurors, providing that a grand jury shall be summoned only when ordered by the court, and providing for the prosecution by information, and the procedure thereunder." Sess. Laws Wyo. 1890-91, c. 59, p. 213. The offense is charged in the information as having occurred on the 16th day of December, A. D. 1890, nearly a month before the act took effect; and the counsel for the petitioner claim that the petitioner, notwithstanding his plea of guilty, should be proceeded against by indictment instead of by information, as, prior to the passage of the act above named, he could only have been accused by indictment. It is urged that the petitioner is held without due process of law, and that the law applying to the prosecution of offenses committed prior to its enactment is an ex post facto law, and in violation of section 35 of the declaration of rights, (Const. Wyo. art. 1,) which states that "no ex post facto law, nor any law impairing the obligation of contracts, shall ever be made." The constitutional authority for the enactment of the statute is found in said article, and reads as follows: "Sec. 9. The right of trial by jury shall remain inviolate in criminal cases, but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve men, as may be prescribed by law. Hereafter a grand jury may consist of twelve men, any nine of whom concurring may find an indictment, but the legislature may change, regulate, or abolish the grand jury system." "Sec. 13. Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by an indictment, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." The act providing for prosecutions by information, and under which the petitioner was accused, provides, among other things, that all crimes, misdemeanors, and offenses may be prosecuted in the court having jurisdiction thereof, either by indictment, as "hereinafter provided," or by information. It further provides that "no grand jury shall hereafter be summoned or required to attend at the sittings of any district court in this state, unless the same shall be ordered by a district court, or by the judge thereof, in the vacation or recess of said court, and the grand jury shall consist of twelve men, nine of whom must concur in the finding of an indictment." The act was undoubtedly intended to apply to prosecutions of all offenses committed prior to the passage of the act as well as to those committed thereafter. There is no repeal of existing laws, nor any saving clause providing that offenses committed prior to the passage of the act shall be inquired of, prosecuted, and punished under laws existing at the time of the passage of the act. It seems that the legislature had determined to dispense with grand juries after the act took effect, except when called by the court or judge thereof, following very closely the law of Michigan in this respect. The general right to substitute prosecutions by information in place of prosecutions by indictment is conceded, in view of the constitutional provisions in this state, and it is not claimed that this infringes any right of a defendant. Indeed, this has been so frequently settled that it is unnecessary to cite any authorities, but we cite a few, which have come immediately under our observation. Hurtado v. People, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; In re Lowrie, 8 Colo. 499, 9 P. 489; State v. Barnett, 3 Kan. 250; Rowan v. State, 30 Wis. 129. These cases dispose also of the question as to whether or not a proceeding by information is due process of law, and we do not consider it necessary to dwell longer on this point. We reach the vital question, which it is practically admitted is the only one before us, whether or not the petitioner has a right to complain now, after his plea of guilty has been entered, that he was not indicted by a grand jury. Notwithstanding the somewhat singular case presented to us, of a defendant, represented in every stage of the case by eminent counsel, waiting until he has withdrawn his plea of not guilty, after he has interposed his plea of guilty, after he has had ample time to raise all objections to the validity of the proceedings, now asking this court to release him from imprisonment under what he claims is a void sentence, we shall proceed to determine the question whether or not the district court for Laramie county acquired jurisdiction of the case by the information filed therein, or whether the petitioner had a right to be indicted by the grand jury of said county.

The rules laid down for the determination of the question as to whether or not a law is ex post facto are found in the case of Calder v. Bull, 3 U.S. 386 and have been very generally adopted by the courts of this country. They define the following laws as ex post facto: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime or makes it greater than when it was committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) 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. Mr. Justice CHASE, who delivered the opinion of the court, says: "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." Tested by these plain rules, there would be little difficulty in determining the question before us; but the courts have not contented themselves with this clear definition; and so it was held by Mr. Justice WASHINGTON, in his charge to the jury in a United States circuit court, that "an ex post facto law is one which in its operation makes that criminal which was not so at the time when 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." U.S. v. Hall, 2 Wash. C. C. 366, 26 F. Cas. 84. In the case of Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, this last definition was quoted with the evident approval of the learned justice delivering the opinion of the supreme court of the United States in that case, with a statement that the case was carried to the supreme court and the judgment affirmed, as reported in 6 Cranch 171; but a careful investigation of the opinion in the case last cited will show that the charge of Mr. Justice WASHINGTON was not considered, or even touched upon, in the opinion of the court. It will be seen that the familiar definition of Blackstone found in his Commentaries (volume 1, p. 46) has been much enlarged by modern decisions. Blackstone thus defines the meaning of an "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." Judge Cooley, in his work on Constitutional Limitations, (5th Ed., p. 329,) says: "But, so far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. Statutes giving the government additional challenges, and others which authorized the amendment of indictments, have been sustained, and applied to past transactions, as doubtless would be any similar statute...