The constitutional inhibition on ex post facto
intended to secure substantial personal rights against arbitrary
and oppressive legislative action and not to obstruct mere
alterations in conditions deemed necessary for the orderly
infliction of humane punishment. Roorey v. North Dakota,
196 U. S. 319
Page 237 U. S. 181
A law is not ex post facto
within the constitutional
prohibition that mollifies the rigor of the criminal law, but only
those law that create or aggravate the crime or increase the
punishment or change the rules of evidence for the purpose of
conviction fall within the prohibition. Calder v.
3 Dall. 386.
A statute not changing the penalty of death for murder but only
the mode of producing death, does not increase the punishment.
Producing death by electrocution instead of by hanging does not
increase the punishment and is not unconstitutional under the
ex post facto
prohibition of the federal Constitution, and
as to the statute of South Carolina providing for
punishment of murder by death produced by electrocution instead of
95 S.C. 441 affirmed.
The facts, which involve the constitutionality under the ex
provision of the federal Constitution of the law of
South Carolina relating to punishment for murder and altering of
place and method of execution of the death sentence, are stated in
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. Statutes at Large, 1912, p. 702),
Page 237 U. S. 182
the pertinent portions of which are in the margin. [Footnote 1
] The judgment was affirmed
by the supreme court of the state (95 S.C. 441); 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 237 U. S. 183
ex post facto
and in contravention of Art. I, § 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 enclosure, 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
137 U. S. 491
and Rooney v. North Dakota, 196 U.
, 196 U. S.
-326. The constitutional inhibition of ex post
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, 3 U. S. 390
summarizes ex post facto
laws within the intendment of the
"1st. Every law that makes an action done before the passing of
the law, and which was innocent when done,
Page 237 U. S. 184
criminal, and punishes such action. 2d. Every law that
aggravates a 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 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. All
these, and similar laws, are manifestly unjust and oppressive."
Further expounding the subject, he adds:
"But I do not consider any law ex post facto,
the prohibition, that mollifies the rigor of the criminal law, but
only those that create, or aggravate, the crime, or increase the
punishment, or change the rules of evidence, for the purpose of
And to the general doctrine thus announced this Court has
continued to adhere.
In Mallett v. North Carolina, 181 U.
, 181 U. S. 597
Mr. Justice Shiras, speaking for the Court, after reviewing former
opinions, applied the established principles and concluded that the
impeached legislation was not ex post facto,
"did not make that a criminal act which was innocent when done;
did not aggravate an offense or change the punishment and make it
greater than when it was committed; did not alter the rules of
evidence, and require less or different evidence than the law
required at the time of the commission of the offense, and did not
deprive the accused of any substantial right or immunity possessed
by them at the time of the commission of the offense charged."
Considering the above-stated settled doctrine and well known
facts of which judicial notice is taken, we think the validity of
the impeached act is clear.
Impressed with the serious objection to executions by hanging,
and hopeful that means might be found for taking life "in a less
barbarous manner," the Governor of New York brought the subject to
the attention of the legislature
Page 237 U. S. 185
in 1885. A commission thereafter appointed to ascertain the most
humane and practical method of inflicting the death sentence
reported in favor of electrocution. This was adopted by the statute
of 1888, and, with the approval of the courts, has been in
continuous use since that time. In re Kemmler,
136 U. S. 436
People ex Rel. Kemmler v. Durston,
119 N.Y. 569.
Influenced by the results in New York, eleven other states
] have adopted the
same mode for inflicting death in capital cases, and, as is
commonly known, this result is the consequent of a well grounded
belief that electrocution is less painful and more humane than
hanging. Storti v. Commonwealth,
178 Mass. 549, 553;
State v. Tomassi,
75 N.J.L. 739, 747.
The statute under consideration did not change the penalty --
death -- for murder, but only the mode of producing this, together
with certain nonessential details in respect of surroundings. The
punishment was not increased, and some of the odious features
incident to the old method were abated.
In Hartung v. People, supra,
the court had under
consideration and condemned an act of the legislature which made a
distinct addition to the penalty prescribed when the crime was
committed, and the conclusion therein is not properly applicable in
the circumstances of the present cause, where there has been no
The judgment of the court below is
"AN ACT TO PRESCRIBE THE METHOD OF CAPITAL"
"PUNISHMENT IN SOUTH CAROLINA"
"SEC. 1. Be it enacted by the General Assembly of the State of
South Carolina, that, after the approval of this act by the
Governor, all persons convicted of capital crime and have imposed
upon them the sentence of death shall suffer such penalty by
electrocution within the walls of the State Penitentiary at
Columbia, under the direction of the Superintendent of the
Penitentiary instead of by hanging."
"SEC. 2. The Board of Directors of the State Penitentiary are
authorized and required to provide a death chamber and all
necessary appliances for inflicting such penalty by electrocution
and pay the costs thereof out of any funds in their hands. The
expense of transporting any such criminal to the State Penitentiary
shall be borne by the county in which the offense was
"SEC. 3. Upon the conviction of any person in this state of a
crime the punishment of which is death, it shall be the duty of the
presiding judge to sentence such convicted person to death
according to the provisions of this Act, and to make such sentence
in writing, which shall be filed with the papers in the case
against such convicted person, and a certified copy thereof shall
be transmitted by the Clerk of the Court of General Sessions in
which said sentence is pronounced to the Superintendent of the
State Penitentiary at Columbia. . . ."
"SEC. 4. At such execution there shall be present the
executioner and at least two assistants, the penitentiary surgeon
and one other surgeon, if the condemned person so desires, an
electrician, the condemned person's counsel and relatives, if they
so desire, ministers of the gospel, not exceeding three, if they so
desire, and not less than twelve nor more than twenty-four
respectable citizens of this state to be designated by the
"SEC. 5. . . ."
"SEC. 6. . . ."
"SEC. 7. That all acts or parts of acts inconsistent with this
act are hereby repealed."
"Approved the 17th day of February, A.D. 1912."
Ohio, 1896; Massachusetts, 1898; New Jersey, 1907; Virginia,
1908; North Carolina, 1909; Kentucky, 1910; South Carolina, 1912;
Arkansas, Indiana; Pennsylvania, and Nebraska, 1913.