Kring v. State of Missouri

• Citation: 27 L.Ed. 506,107 U.S. 221,2 S.Ct. 443
• Parties: KRING v. STATE OF MISSOURI
• Decision Date: 02 April 1883
• Court: United States Supreme Court

107 U.S. 221

2 S.Ct. 443

27 L.Ed. 506

KRING v. STATE OF MISSOURI.

April 2, 1883.

L. D. Seward and Jeff. Chandler, for plaintiff in error.

S. F. Phillips, for defendant in error.

MILLER, J.

This is a writ of error to the supreme court of Missouri. The plaintiff in error was indicted in the criminal court of St. Louis for murder in the first degree, charged to have been committed January 4, 1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once on plea of guilty of murder in the second degree. His case has been three times before the court of appeals of that state, and three times before the supreme court of the state. In the last instance, the supreme court affirmed the judgment of the criminal court, by which he was found guilty of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ of error is directed. It is to be premised that the court of appeals is an intermediate appellate tribunal between the criminal court of St. Louis and the supreme court of the state, to which all appeals of this character are first taken. At the trial, immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty to murder in the second degree, which plea was accepted by the prosecuting attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for 25 years. He took an appeal from this judgment, on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did his sentence should not exceed 10 years' imprisonment, and the supreme court reversed that judgment, and remanded the case to the St. Louis criminal court for further proceedings. In that court, when the case was again called, the defendant refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree, and ordered a general plea of not guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment was affirmed by the supreme court of the state. By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the second degree, defendant raised the point that the proceedings under that plea, namely, its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense. This point he insisted on in the circuit court, and relied on it for reversing the judgment in the court of appeals and in the supreme court. Both these latter tribunals, in the opinions delivered by them, and which are part of the record, conceded that such was the law of the state of Missouri at the time the homicide was committed. But they overruled the defense on the ground that by section 23 of article 2 of the constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and for this reason defendant could be tried for murder in the first degree, notwithstanding his conviction and sentence for murder in the second degree. As this new constitution was adopted after the crime was committed for which Kring is indicted, and, as construed by the court of appeals and the supreme court, changes the law as it then stood to the disadvantage of the defendant, the jurisdiction of this court is invoked on the ground that, as to this case, and as so construed, it is an ex post facto law, within the meaning of section 10, art. 1, of the constitution of the United States.

That it may be clearly seen what the supreme court of Missouri decided on this subject and what consideration they gave it, we extract here all that is said in their opinion about it. 'There is nothing in the point,' they say, 'that after an accepted plea of guilty of murder of the second degree the defendant could not be put upon trial for murder of the first degree. We shall, on that proposition, accept what is said by the court of appeals in its opinion in this cause.' What that court said on this subject is as follows:

'The theory of counsel for defendant that a plea of guilty of murder in the second degree, regularly entered and received, precludes the state from afterwards prosecuting the defendant for murder in the first degree, is inconsistent with the ruling of the supreme court in State v. Kring, 71 Mo. 551, and in State v. Stephens, Id. 535. The declarations of defendant that he would stand upon his plea already entered were all accompanied with a condition that the court should sentence him for a term not to exceed 10 years, in accordance with an alleged agreement with the prosecuting attorney, which the court would not recognize. The prisoner did not stand upon his plea of guilty of murder in the second degree; he must, therefore, be taken to have withdrawn that plea, and, as he refused to plead, the court properly directed the plea of not guilty of murder in the first degree to be entered.

'Formerly it was held in Missouri (State v. Ross, 20 Mo. 32 that when a conviction is had of murder in the second degree on an indictment charging murder in the first degree, if this be set aside the defendant cannot again be tried for murder in the first degree. A change introduced by section 23 of article 2 of the constitution of 1875 has abrogated this rule. On the oral argument something was said by counsel for the defendant to the effect that under the old rule defendant could not be put on his trial for murder in the first degree, and that he could not be affected by the change of the constitutional provision, the crime having been committed while the old constitution was in force. There is, however, nothing in this; this change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto. Gut v. State, 9 Wall. 35; cummings v. Missouri, 4 Wall. 326.'

We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder of the first degree; and that, but for the change in the constitution of the state, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change of the constitution it would, in this case, be liable to objection as an ex post facto law, the only answer is that there is nothing in it, as the change is simply in a matter of procedure. Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the change cannot be denied.

It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea, nor upon its acceptance by the state's attorney, nor the consent of the court; but it stands upon the judgment and sentence of the court by which he is convicted of murder in the second degree, and sentence pronounced according to the law of that guilt, which was by operation of the same law an acquittal of the other and higher crime of murder charged in the same indictment. It is sufficient for this case that the supreme court of Missouri, in the opinion we are examining, says it was so, and cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for plaintiff in error cites to the same effect the cases of State v. Ball, 27 Mo. 327; State v. Smith, 53 Mo. 139.

Blackstone says, (Comm. book 4, side page 336:)

'The plea of autrefois convict, or a former conviction for the same identical crime, through no judgment was ever given, or, perhaps, will be, (being suspended by benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, (that is, autrefois acquit,) that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter, on an appeal or indictment, is a bar even in another appeal, and much more in an indictment for murder; for the fact prosecuted is the same in both, though the offenses differ in coloring and degree.' See State v. Norvill, 2 Yerg. 24; 9 Yerg. 337.

This law, in force at the date of the homicide for which Kring is now under sentence of death, was changed by the state of Missouri between that time and his trial so as to deprive him of its benefit, to which he would otherwise have been entitled, and we are called on to decide whether in this respect, and as applied by the court to this case, it is an ex post facto law within the meaning of the constitution of the United States. There is no question of the right of the state of Missouri, either by the her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that as to that offense it is ex post facto. This term necessarily implies a fact or act done, after which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot. As to that offense, be an ex post facto law. If passed after the commission of the...