State ex rel. Houston v. Willis

• Decision Date: 31 October 1877
• Citation: 66 Mo. 131
• Parties: THE STATE ex rel. HOUSTON v. WILLIS, Warden of the Penitentiary.
• Court: Missouri Supreme Court

66 Mo. 131

THE STATE ex rel. HOUSTON

v.WILLIS, Warden of the Penitentiary.

Supreme Court of Missouri.

October Term, 1877.

Petition for Habeas Corpus.

The petitioner, Houston, was indicted for stealing personal property of the value of ten dollars. He pleaded guilty, and was sentenced to two years imprisonment in the penitentiary. The other facts appear in the opinion of the court.

Louis Houck and Henry Flanagan for relator.

1. The change in the law defining petit larceny enured to Houston's benefit. Section 6, p. 895, Wag. Stat., does not apply, because the act of 1877 does not repeal, but only amends the sections of the General Statutes defining larceny.

2. It was competent for the Legislature notwithstanding the General Statute, to modify the punishment of crime, and if an act reduces the punishment, or prescribes a penalty less severe, leaving the act in force which defines the crime, it cannot be said that Sec. 6 above quoted, saves the act amended, and that the offense must be punished according to the provisions of the latter. The act is in mitigation of punishment, and is not a repeal of an existing law. We submit, therefore, that the old punishment as to offenses committed before the passage of the act of 1877 is not revived. Cooley on Con. Lim., 267 et seq.

J. L. Smith, Attorney-General, for respondent, cited Wag. Stat., p. 456, § 25; p. 894, § 3: p. 895, § 6; R. S. 1835, p. 385, §§ 37, 38; Rogers v. Pacific R. R. Co., 35 Mo. 153. Section 7, Wag. Stat., p. 894, applies only to actions pending at the time the General Statutes of 1865 went into effect. R. S. 1835, p. 385-6, § 39; R. S. 1845, p. 698, § 16; R. S. 1855, p. 1025, § 16.

SHERWOOD, C. J.

The object of this writ is to test the legality of the confinement of Houston in the penitentiary, pursuant to judgment and sentence of the Scott circuit court for grand larceny, the crime being committed and indictment found prior to January 1st, 1877, though the trial did not occur until after an act went into effect, changing in certain cases what was theretofore known as grand larceny into petit larceny, and making also different provision for the punishment of crimes of the class for which the prisoner received his sentence. Passing over all mere preliminary questions, we proceed to discuss the merits of the case.

The act referred to was approved March 1, 1877, went into effect July 28th of that year, and is as follows: § 1. That section 25 of chapter 201 of the General Statutes of Missouri, be, and the same is hereby amended by striking out the word “ten” and inserting the word “twenty,” so as to read as follows: § 25. Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, right in action, or other personal property or valuable thing whatsoever, of the value of twenty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep or hog belonging to another, shall be deemed guilty of grand larceny.

§ 2. § 27 of the same chapter of the General Statutes be, and the same is hereby amended by striking out the word “ten” and inserting the word “twenty,” so as to read as follows: § 27. Every person who shall steal, take and carry away any money or personal property or effects of another, under the value of twenty dollars, (not being the subject of grand larcery without regard to value,) shall be deemed guilty of petit larceny, and on conviction shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment.

Section 6, (2 W. S., 895,) provides that: “No offense committed, and no fine, penalty or forfeiture incurred, previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; but the trial and punishment of all such offenses, and the recovery of such fines, penalties and forfeitures, shall be had in all respects as if the provision had remained in force.”

This section must be held as decisive of this case. According to it, had the old statute been absolutely repealed, the prisoner must still have met with punishment “in all respects as if the provision had remained in force.” This is precisely the view taken of the effect of this section in State v. Mathews, (14 Mo. 133,) Mr. Justice Ryland in that case holding that the section just quoted, operated as a “saving clause” in the prevention of the operation of the repeal. Shall an amendment, a partial repeal, accomplish more than could a total one? This question would seem to furnish its own answer.

Besides, the language of the act of March 1st, 1877, is directed to the future and not the past: “Every person who shall steal,” &c. And the general rule of construction is that legislation is to be regarded as prospective and not retrospective in its operation. State v. Hays, (52 Mo. 578); Lewis v. Brackenridge, (1 Blackf. 220.) This is especially true of laws relating to crimes and their punishment. There is positively nothing in the act under consideration, even remotely indicative of legislative intention, either to abrogate section 6, supra, or to affect in the slightest degree, antecedent criminal occurrences; and in my opinion if the legislature had evinced in the act of 1877 the most decided intention of making that act applicable to the punishment of prior transactions, it is to the last degree doubtful whether such act, regard being had to the terms thereof, would not have been violative of the constitutional prohibition respecting ex post facto laws, i. e., criminal laws retrospective in their operation. A law of this description is said to be one “which renders an act punishable in a manner in which it was not punishable when committed.” Laws, however, which mitigate the character or punishment of a crime already committed, may not fall within the prohibition, for they are in favor of the citizen.” (2 Story on Const., § 1345 and cases cited.)

The first definition of an ex post facto law above given that it “renders an act punishable in a manner in which it was not punishable when it was committed,” is readily understood; a bare inspection of the former and subsequent acts will speedily show whether any change has been made in the punishment to be inflicted. But the ground becomes vastly more debatable when the inquiry arises upon a particular statute, whether it does indeed mitigate the previously imposed punishment. There has been great diversity of opinion as to what in this connection, constitutes mitigation....