Joe Malloy v. State of South Carolina, No. 172

CourtUnited States Supreme Court
Writing for the CourtMcReynolds
Citation59 L.Ed. 905,35 S.Ct. 507,237 U.S. 180
PartiesJOE MALLOY, Plff. in Err., v. STATE OF SOUTH CAROLINA
Decision Date05 April 1915
Docket NumberNo. 172

237 U.S. 180
35 S.Ct. 507
59 L.Ed. 905
JOE MALLOY, Plff. in Err.,

v.

STATE OF SOUTH CAROLINA.

No. 172.
Argued March 5, 1915.
Decided April 5, 1915.

Page 181

Messrs. Charles L. Prince and W. F. Stevenson for plaintiff in error.

Mr. F. H. Dominick and Mr. Thomas H. Peeples, Attorney General of South Carolina, for defendant in error.

Mr. Justice McReynolds delivered the opinion of the court:

At the summer term, 1912, court of general sessions, Marlboro county, South Carolina, Joe Malloy was found guilty without a recommendation to mercy under an indictment charging him with the murder of Moore, November 24, 1910, and sentenced to death by electrocution in conformity to the act of the legislature approved February 17, 1912 (S. C. Stat. at L. 1912, p. 702),

Page 182

the pertinent portions of which are in the margin.1 The judgment was affirmed by the supreme court of the state (95 S. C. 441, 78 S. E. 995); the cause is here by writ of error; and a reversal is asked solely upon the ground that the enactment of 1912 materially changed the punishment for murder, and therefore in respect of Malloy's offense is

Page 183

ex post facto and in contravention of art. 1, § 10, of the Federal Constitution.

Under the South Carolina laws effective when the crime was committed the punishment for one found guilty of murder without recommendation to mercy was death by hanging within the county jail, or its inclosure, in the presence of specified witnesses. The subsequent act prescribed electrocution as the method of producing death instead of hanging, fixed the place therefor within the penitentiary, and permitted the presence of more invited witnesses than had theretofore been allowed.

In response to the meticulous objection based upon change of place for execution and increased number of witnesses it suffices to refer to what this court said through Mr. Justice Harlan in Holden v. Minnesota, 137 U. S. 483, 491, 34 L. ed. 734, 736, 11 Sup. Ct. Rep. 143, and Rooney v. North Dakota, 196 U. S. 319, 325, 326, 49 L. ed. 494, 496, 497, 25 Sup. Ct. Rep. 264, 3 Ann. Cas. 76. The constitutional inhibition of ex post facto laws was intended to secure substantial personal rights against arbitrary and oppressive legislative action, and not to obstruct mere alteration in conditions deemed necessary for the orderly infliction of humane punishment.

The contention in behalf of plaintiff in error most earnestly relied on is this: Any statute enacted subsequent to the commission of a crime which undertakes to change the punishment therefor is ex post facto and unconstitutional unless it distinctly modifies the severity of the former penalty. 'The courts cannot and will not undertake to say whether or not a change from hanging to electrocution is an increase or mitigation of punishment;' and therefore the act of 1912 cannot apply in the circumstances presented here. Hartung v. People, 22 N. Y. 95.

The often-quoted opinion of Mr. Justice Chase in Calder v. Bull, 3 Dall. 386, 390, 391, 1 L. ed. 648, 650, summarizes ex post facto laws within the intendment of the Constitution thus: '1st. Every law that makes an action done before the passing of the law, and which was innocent when done,

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criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than...

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134 practice notes
  • Baze v. Rees, No. 07–5439.
    • United States
    • United States Supreme Court
    • April 16, 2008
    ...suit, motivated by the “well-grounded belief that electrocution is less painful and more humane than hanging.” Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915). Electrocution remained the predominant mode of execution for nearly a century, although several meth......
  • Glossip v. Gross, No. 14–7955.
    • United States
    • United States Supreme Court
    • June 29, 2015
    ...electrocution is less painful and more humane than hanging.’ " Baze, 553 U.S., at 42, 128 S.Ct. 1520 (quoting Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915) ).In 1921, the Nevada Legislature adopted another new method of execution, lethal gas, after concludin......
  • California Dept. Corrections v. Morales, 931462
    • United States
    • United States Supreme Court
    • April 25, 1995
    ...v. Florida, 482 U.S., at 429, 107 S.Ct., at 2451; Weaver v. Graham, 450 U.S., at 29, 101 S.Ct., at 964; see also Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 508, 59 L.Ed. 905 (1915). The narrower the class burdened by retroactive legislation, the greater the danger that the l......
  • Personal Restraint of Benn, Matter of, No. 61080-1
    • United States
    • United States State Supreme Court of Washington
    • June 5, 1997
    ...the method of execution does not violate the Ex Post Facto Clause where the change is to a more humane method. Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915), cited in Weaver v. Graham, 450 U.S. 24, 32-33 n. 17, 101 S.Ct. 960, 966 n. 17, 67 L.Ed.2d 17 20 This issu......
  • Request a trial to view additional results
132 cases
  • Baze v. Rees, No. 07–5439.
    • United States
    • United States Supreme Court
    • April 16, 2008
    ...suit, motivated by the “well-grounded belief that electrocution is less painful and more humane than hanging.” Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915). Electrocution remained the predominant mode of execution for nearly a century, although several meth......
  • Glossip v. Gross, No. 14–7955.
    • United States
    • United States Supreme Court
    • June 29, 2015
    ...electrocution is less painful and more humane than hanging.’ " Baze, 553 U.S., at 42, 128 S.Ct. 1520 (quoting Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915) ).In 1921, the Nevada Legislature adopted another new method of execution, lethal gas, after concludin......
  • California Dept. Corrections v. Morales, 931462
    • United States
    • United States Supreme Court
    • April 25, 1995
    ...v. Florida, 482 U.S., at 429, 107 S.Ct., at 2451; Weaver v. Graham, 450 U.S., at 29, 101 S.Ct., at 964; see also Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 508, 59 L.Ed. 905 (1915). The narrower the class burdened by retroactive legislation, the greater the danger that the l......
  • Personal Restraint of Benn, Matter of, No. 61080-1
    • United States
    • United States State Supreme Court of Washington
    • June 5, 1997
    ...the method of execution does not violate the Ex Post Facto Clause where the change is to a more humane method. Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915), cited in Weaver v. Graham, 450 U.S. 24, 32-33 n. 17, 101 S.Ct. 960, 966 n. 17, 67 L.Ed.2d 17 20 This issu......
  • Request a trial to view additional results
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