John Mallett v. State of North Carolina

• Decision Date: 20 May 1901
• Docket Number: No. 189,189
• Citation: 45 L.Ed. 1015,21 S.Ct. 730,181 U.S. 589
• Parties: JOHN P. MALLETT and C. B. Mehegan, Plffs. in Err. , v. STATE OF NORTH CAROLINA
• Court: U.S. Supreme Court

181 U.S. 589

21 S.Ct. 730

45 L.Ed. 1015

JOHN P. MALLETT and C. B. Mehegan, Plffs. in Err.,

v STATE OF NORTH CAROLINA.

No. 189.

Argued April 8, 1901.

Decided May 20, 1901.

In September, 1898, John P. Mallett and Charles B. Mehegan were indicted and tried in the criminal court of the county of Edgecombe, North Carolina, for conspiracy to defraud. They were convicted and sentenced to two years' imprisonment in the common jail. They appealed to the superior court. The record was certified up by the clerk of the criminal court on April 1, 1899. The superior court reversed the verdict and judgment, and granted a new trial. From this judgment of the superior court the state appealed, on July 7, 1899, to the supreme court, which reversed the judgment of the superior court, and remanded the cause to the criminal court, with directions that the sentence imposed by that court should be carried into execution.

At the time of the commission of the offense, and at the time of the trial in the criminal court of Edgecombe county, the state of North Carolina was not entitled to appeal to the supreme court of the state from the judgment of the superior court granting the defendants a new trial. There are two district criminal courts in the state,—the eastern and the western. In the eastern district, in which the county of Edgecombe is situated, the state, since March 6, 1899, by legislation of that date, is allowed to appeal to the supreme court from a judgment of the superior court granting a defendant a new trial, but such right of appeal is not allowed to the state from judgments of the superior court in cases on appeal from the western district criminal court. It thus appears that the right of appeal from the superior court to the supreme court was conferred upon the state after the commission of the offense and the trial in the criminal and before the superior court had granted a new trial.

From the judgment of the supreme court of the state a writ of error was allowed to this court.

Messrs. F. H. Buskee and R. O. Burton for plaintiffs in error.

Messrs. J. C. L. Harris, B. G. Green, C. A. Cook and Attorney General Walser for defendant in error.

Mr. Justice Shiras delivered the opinion of the court:

Before considering the errors assigned by the plaintiffs in error to the judgment of the supreme court of North Carolina, it is proper that we should dispose of the motion made by the counsel for the state to dismiss the writ of error, on the alleged ground that the record does not disclose that any Federal question was raised in either of the courts in which the case was heard, and that no such question was raised.

It is, of course, obvious that there was no opportunity for the defense to raise in the criminal court the question as to the validity, as against the defendants, of the legislation allowing an appeal to the supreme court, because that legislation was not enacted till after the trial had been concluded.

It would also seem that the question of the validity of that legislation, in its Federal aspect, was not raised or considered in the superior court. It is true that in that court error was alleged to the action of the criminal court in permitting evidence of certain statements in the books of the defendants, and which books had been seized by the sheriff under an attachment against the property of the defendants, to be used on the trial against the defendants and over their objection; and that contention was sustained by the superior court, and the new trial was granted for that and other reasons. But it does not appear that the superior court was formally called upon to consider any Federal question.

But we are of opinion that questions arising under the Constitution and laws of the United States were presented in the supreme court of the state, and were by that court considered and decided against the party invoking their protection.

It is true, as we learn from the first opinion filed by the supreme court, that such Federal questions were not considered by that court, or, at all events, were not treated as Federal questions, but as questions arising under state laws. But the record discloses that, after that opinion had been filed, but before it had been certified down, the defendants filed a petition for reargument, and presented the Federal questions on which they rely. The supreme court entertained the petition, and proceeded to discuss and decide the Federal questions. In support of the motion to dismiss, numerous decisions of this court are cited to the effect that it is too late to raise a Federal question by a petition for a rehearing in the supreme court of a state after that court has pronounced its final decision. Loeber v. Schroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934; Sayward v. Denny, 158 U. S. 183, 39 L. ed. 942, 15 Sup. Ct. Rep. 768; Pim v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Ct. Rep. 322.

But those were cases in which the supreme court of the state refused the petition for a rehearing, and dismissed the petition without passing upon the Federal questions. In the present case, as already stated, the supreme court of North Carolina did not refuse to consider the Federal questions raised in the petition, but disposed of them in an opinion found in this record. State v. Mallett, 125 N. C. 718, 34 S. E. 651. Had that court declined to pass upon the Federal questions, and dismissed the petition without considering them, we certainly would not undertake to revise their action.

The first contention we encounter in the assignments of error is that, as the statute which provides for an appeal from the superior court to the supreme court in criminal cases was not passed until after the commission of the offense charged and the trial in the criminal court, it was, as against the plaintiffs in error, ex post facto and in violation of art. 1, § 10, of the Constitution of the United States.

The opinion of the supreme court stating the facts and disposing of this question is brief, and may be properly quoted:

'The next exception in the petition is that at the time of the commission of the offense the statute allowed no appeal to the state from the ruling of the superior court judge. But the defendants had no 'vested rights' in the remedies and methods of procedure in trials for crime. They cannot be said to have committed this crime relying upon the fact that there was no appeal given the state in such cases. If they had considered that matter they must have known that the state had as much power to amend § 1237 as it had to pass it, and they committed the crime subject to the probability that appeals in rulings upon matters of law would be given the state from these intermediate courts. At any rate, their complaint is of errors in the trial court, and when they appealed to the superior court they did so by virtue of an act which provided that the rulings of that court upon their case could be reviewed, at the instance of the state, in a still higher court. The appeal was certified up to the superior court April 1, 1899, and on July 7, 1899, the appeal was taken to this court. The statute regulating appeals from the eastern district criminal court (chapter 471, Laws 1899), was ratified March 6, 1899.'

The subject has been several times considered by this court. The first case was that of Calder v. Bull, 3 Dall. 386, 1 L. ed. 648, where the important decision was made that the provision prohibiting ex post facto laws had no application to legislation concerning civil rights. But the opinion, delivered by Mr. Justice Chase, contains a classification of the criminal cases in which the provision is applicable:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates the crime or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. 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.'

In Cummings v. Missouri, 4 Wall. 277, 18 L. ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L. ed. 366, a law which excluded a minister of the gospel from the exercise of his clerical functions, and a lawyer from practice in the courts, unless each would take an oath that they had not engaged in or encouraged armed hostilities against the government of the United States, was held to be an ex post facto law, because it punished, in a manner not before prescribed by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction.

In Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443, will be found an elaborate review of the history of the ex post facto clause of the Constitution, and of its construction by the Federal and the state courts. Kring was convicted of murder in the first degree, and the judgment of condemnation was affirmed by the supreme court of Missouri. A previous sentence pronounced on his plea of murder in the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal, been reversed and set aside. By the law of Missouri in force when the homicide was committed this sentence was an acquittal of the crime of murder in the first degree; but before his plea of guilty was entered the law was changed, so that, by the force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime; and it was held, four of the justices dissenting, that, as to this case, the new law was an ex post facto law, and that he could not again be tried for murder in the first degree.

In Hopt v. Utah, 110 U. S. 574, 587, 28 L. ed. 262, 267, 4 Sup. Ct. Rep. 202,...