Lindsey v. State

• Decision Date: 12 November 1888
• Citation: 65 Miss. 542,5 So. 99
• Court: Mississippi Supreme Court
• Parties: JAMES LINDSEY v. THE STATE

5 So. 99

65 Miss. 542

JAMES LINDSEY v. THE STATE

Supreme Court of Mississippi

November 12, 1888

APPEAL from the Circuit Court of Sharkey County, HON. J. H. WYNN Judge.

The case is stated in the opinion of the Court.

Judgment reversed and cause dismissed.

J. W Downs and W. D. Brown, for the appellant.

Appellant was indicted November, 1887, and convicted at the May term 1888, under Section 2985 of the Code. After indictment and before conviction the punishment for the offence was increased by Act approved March 9th, 1888. (See acts of 1888, chapter 54, page 89). There is in the amendatory act no saving clause authorizing the court to sentence under the law as it stood prior to the amendment, and to sentence appellant under the amendatory act would be a violation of his constitutional rights.

Section 2985 of the Code fixes a maximum but no minimum of punishment for the offence. The amendatory act fixes a minimum where there was none. This is clearly an increase of the penalty. On a conviction now the court must inflict a heavier punishment than might have been imposed prior to the amendment of the statute. The court's discretion, as it existed under Section 2985 of the Code, has been taken away.

This increase of punishment clearly makes the amendatory act ex post facto as to appellant, and he cannot, therefore, be sentenced under it. Bishop on Criminal Law, Vol. 1, Sec. 219; Cooley's Constitutional Limitations, 323-333.

T. M. Miller, Attorney-General, for the State.

The Act of 1888 does not warrant the infliction of any penalty that could not have been imposed under the Code of 1880 for carrying concealed weapons. If, therefore, the test of an ex post facto law is that it enlarges the penalty, then there is no cause of complaint here. If any change in the possible punishment depending on the discretion of the judge, but within a fixed limit amounts to an ex post facto law, then the state's side surrenders. The case is submitted on the reasoning and authorities found in Cooley on Constitutional Limitations, page 323, etc.

OPINION

ARNOLD, C. J.

In December, 1887, appellant was indicted for carrying a concealed weapon. At that time the punishment prescribed by Sec. 2985 of the Code for such offence was by fine, not exceeding one hundred dollars, and, in the event the fine and costs were not paid, by hard labor, not exceeding two months; and at that time the statute did not prohibit one who had good and sufficient reason to apprehend an attack, from carrying concealed weapons.

In May, 1888, appellant was tried on the indictment, convicted and sentenced to pay a fine of thirty dollars; but prior to that date, the legislature, by the act approved March the 9th, 1888, amended Sec. 2985 of the Code by striking out the words having good and sufficient reason to apprehend an attack, and providing, without any saving clause as to past offences, that the punishment for carrying concealed weapons shall be by fine not exceeding one hundred dollars, nor less than twenty-five dollars, and, in the event the fine and costs were not paid, by hard labor, not exceeding two months, nor less than one month. It is urged by appellant that he cannot be punished under the old law, because it has been repealed; nor under the amended law, because as to him it is an ex post facto law, both under the State and federal constitutions.

The purpose and effect of the amendment to Sec. 2985 of the Code was to repeal so much of the section as fixed the punishment for carrying concealed weapons and permitted having good and sufficient reason to apprehend an attack to be a defence to the charge, and to prescribe a new and severer punishment for the offence. The punishment prescribed by the amendment was substituted for and took the place of that provided by the section before it was amended. The section, as amended, made it unlawful for one to carry concealed weapons, though he might have good and sufficient reason to apprehend an attack, and it increased both the minimum of fine and imprisonment provided by the section before its amendment, and prescribed the only penalty for the offence.

In this state of the law, how can appellant be lawfully punished for the offence with which he is charged? It is better that any criminal shall go unpunished than that any provision of the constitution shall be disregarded, or that the foundations of the criminal law shall be unsettled.

After the amendment to Sec. 2985 of the Code was adopted, appellant could not be punished under the section as it existed before the amendment, because so much of it as related to the penalty had been repealed, and he could not be punished under the section as amended, because it operated prospectively from the date of the approval of the amendment, and there being no saving clause as to offences committed before the passage of the amendment, it could not be applied to him. Wheeler v. State, 64 Miss. 462, 1 So. 632. As to him, the amended law was clearly an ex post facto law, first, because it abrogated the right which before existed of defending against the charge on the ground that he had good and sufficient reason to apprehend an attack, and made an act criminal which was not so at the time the amendment was passed; and second, because it changed but did not mitigate the punishment for the offence. Cooley on Const. Lim., 321-329; 1 Bish. Cr. L., Sec. 281; 1 Kent Com., 409; Calder v. Bull, 3 Dall. 386; Hartung v. People, 22 N.Y. 95; Kring v. Missouri, 107 U.S. 221, 27 L.Ed. 506, 2 S.Ct. 443; Com. v. McDonough, 13 Allen 581.

There is, perhaps, no provision of our state or federal constitution founded on broader or juster views of human rights and liberty than that which prohibits ex post facto laws. Mr. Madison considered the clause of the federal constitution on the subject, as a "bulwark in favor of personal security and private rights." Federalist, No. 44. Mr. Hamilton ranked it as a security to liberty, equal to the writ of Habeas Corpus. Federalist, No 78. Blackstone defines it to be an ex post facto law, "when, after an act indifferent in itself is committed, the legislature for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it;" and he justly denounces such laws as more unreasonable than the methods of the Roman tyrant, who wrote his laws in very small characters and hung them upon high pillars, the more effectually to deceive and ensnare the people. 1 Bla. Com., 46. In the interest of personal rights and liberty, this definition has been enlarged and liberalized by the general course of judicial decision in this country. In Calder v. Bull, 3 Dallas 386, ex post facto laws were classified by Mr. Justice Chase, as follows: "1st. Every law that makes an...