The Act of the Legislature of Missouri of April 8, 1895,
Missouri Laws 1895, page 284, providing that
"comparison of a disputed writing with any writing proved to the
satisfaction of the judge to be genuine shall be permitted to be
made by witnesses, and such writings and the evidence of witnesses
respecting the same may be submitted to the court and jury as
evidence of the genuineness or otherwise of the writing in
dispute,"
is not
ex post facto under the Constitution of the
United States when applied to prosecutions for crimes committed
prior to its passage.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The record suggests many questions of law, but the only one that
may be considered by this Court is whether the proceedings against
the plaintiff in error were consistent with the provision in the
Constitution of the United States forbidding the states from
passing
ex post facto laws.
Thompson was indicted in the St. Louis Criminal Court at its
November term, 1894, for the murder in the first degree of one
Joseph M. Cunningham, a sexton at one of the churches in the City
of St. Louis. Having been tried and convicted of the offense
charged, he prosecuted an appeal to the Supreme Court of Missouri,
and by that court the judgment was reversed and a new trial was
ordered.
State v. Thompson, 132 Mo. 301. At the second
trial, the accused was again convicted, and, a new trial having
been denied, he prosecuted another appeal to the supreme court of
the state. That court affirmed the last judgment, and the present
appeal
Page 171 U. S. 381
brings that judgment before us for reexamination.
State v.
Thompson, 42 S.W. 949.
The evidence against the accused was entirely circumstantial in
its nature. One of the issues of fact was as to the authorship of a
certain prescription for strychnine, and of a certain letter
addressed to the organist of the church containing threatening
language about the sexton. The theory of the prosecution was that
the accused had obtained the strychnine specified in the
prescription, and put it into food that he delivered or caused to
be delivered to the deceased with intent to destroy his life. The
accused denied that he wrote either the prescription or the letter
to the organist, or that he had any connection with either of those
writings. At the first trial, certain letters written by him to his
wife were admitted in evidence for the purpose of comparing them
with the writing in the prescription and with the letter to the
organist. The supreme court of the state, upon the first appeal,
held that it was error to admit in evidence for purposes of
comparison the letters written by Thompson to his wife, and for
that error the first judgment was reversed and a new trial ordered.
132 Mo. 301, 324.
Subsequently the General Assembly of Missouri passed an act
which became operative in July, 1895, providing that
"comparison of a disputed writing with any writing proved to the
satisfaction of the judge to be genuine shall be permitted to be
made by witnesses, and such writings and the evidence of witnesses
respecting the same may be submitted to the court and jury as
evidence of the genuineness or otherwise of the writing in
dispute."
Laws Missouri, April 8, 1895, p. 284.
This statute is in the very words of section 27 of the English
Common Law Procedure Act of 1854, 17 & 18 Vict. c. 125, and by
28 Vict. c. 18, ยงยง 1, 8, the provisions of that act were extended
to criminal cases.
At the second trial, which occurred in 1896, the letters written
by the accused to his wife were again admitted in evidence over his
objection for the purpose of comparing them with the order for
strychnine and the letter to the
Page 171 U. S. 382
organist. This action of the trial court was based upon the
above statute of 1895.
The contention of the accused is that, as the letters to his
wife were not,
at the time of the commission of the alleged
offense, admissible in evidence for the purpose of comparing
them with other writings charged to be in his handwriting, the
subsequent statute of Missouri changing this rule of evidence was
ex post facto when applied to his case.
It is not to be denied that the position of the accused finds
apparent support in the general language used in some opinions.
Mr. Justice Chase, in his classification of
ex post
facto laws in
Calder v. Bull,
3 Dall. 386,
3 U. S. 390,
includes
"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
Kring v. Missouri, 107 U. S. 221,
107 U. S. 228,
107 U. S. 232,
107 U. S. 235,
the question arose as to the validity of a statute of Missouri
under which the accused was found guilty of the crime of murder in
the first degree and sentenced to be hanged. That case was tried
several times, and was three times in the supreme court of the
state. At the trial immediately preceding that last, one Kring was
allowed to plead guilty of murder in the second degree. The plea
was accepted, and he was sentenced to imprisonment in the
penitentiary for the term of twenty-five years. Having understood
that, upon this plea, he was to be sentenced to imprisonment for
only ten years, he prosecuted an appeal, which resulted in a
reversal of the judgment. At the last trial, the court set aside
the plea of guilty of murder in the second degree, the accused
having refused to withdraw it, and, against his objection, ordered
a plea of not guilty to be entered in his behalf. Under the latter
plea, he was tried, convicted, and sentenced to be hanged. By the
law of Missouri at the time of the commission of Kring's offense,
his conviction and sentence under the plea of guilty of murder in
the second degree was an absolute acquittal of the charge of murder
in the first degree. But, that law having been changed before the
final trial occurred, Kring contended that the last
Page 171 U. S. 383
statute, if applied to his case, would be within the prohibition
of
ex post facto laws. And that view was sustained by this
Court, four of its members dissenting.
In the opinion of the court in
Kring's Case, reference
was made to the opinion of Mr. Justice Chase in
Calder v.
Bull and also to the charge of the court to the jury in
United States v. Hall, 2 Wash. C.C. 366, 373. In the
latter case, Mr. Justice Washington said:
"An
ex post facto law is one which, in its operation,
makes that criminal or penal which was not so at the time the
action was performed, or which increases the punishment, or, in
short, which, in relation to the offense or its consequences,
alters the situation of a party to his disadvantage."
He added:
"If the enforcing law applies to this case, there can be no
doubt that, so far as it takes away or impairs the defense which
the law had provided the defendant at the time when the condition
of this bond became forfeited, it is
ex post facto and
inoperative."
Considering the suggestion that the Missouri statute under which
Kring was convicted only regulated procedure, Mr. Justice Miller,
speaking for this Court, said:
"Can any substantial right which the law gave the defendant at
the time to which his guilt relates be taken away from him by
ex post facto legislation, because, in the use of a modern
phrase, it is called a law of procedure? We think it cannot."
In conclusion it was said:
"Tested by these criteria, the provision of the Constitution of
Missouri which denies to plaintiff in error the benefit which the
previous law gave him of acquittal of the charge of murder in the
first degree on conviction of murder in the second degree is, as to
his case, an
ex post facto law within the meaning of the
Constitution of the United States."
A careful examination of the opinion in
Kring v.
Missouri shows that the judgment in that case proceeded on the
ground that the change in the law of Missouri as to the effect of a
conviction of murder in the second degree -- the accused being
charged with murder in the first degree -- was not simply a change
in procedure, but such an alteration of the previous law as took
from the accused, after conviction of murder in the second degree,
that protection against punishment for
Page 171 U. S. 384
murder in the first degree which was given him at the time of
the commission of the offense. The right to such protection was
deemed a substantial one -- indeed, it constituted a complete
defense against the charge of murder in the first degree -- that
could not be taken from the accused by subsequent legislation. This
is clear from the statement in
Kring's Case that the
question before the Court was whether the statute of Missouri
deprived "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 general subject was considered in
Hopt v. Utah,
110 U. S. 574,
110 U. S.
588-589. Hopt was indicted, tried, and convicted of
murder in the Territory of Utah, the punishment therefor being
death. At the time of the commission of the offense, it was the law
of Utah that no person convicted of a felony could be a witness in
a criminal case. After the date of the alleged offense, and prior
to the trial of the case, an act was passed removing the
disqualification as witnesses of persons who had been convicted of
felonies, and the point was made that the statute, in its
application to Hopt's case, was
ex post facto.
This Court said:
"The provision of the Constitution which prohibits the states
from passing
ex post facto laws was examined in
Kring
v. Missouri, 107 U. S. 221. The whole subject
was there fully and carefully considered. The Court, in view of the
adjudged cases as well as upon principle, held that a provision of
the Constitution of Missouri denying to the prisoner charged with
murder in the first degree the benefit of the law as it was at the
commission of the offense, under which a conviction of murder in
the second degree was an acquittal of murder in the first degree,
even though such judgment of conviction was subsequently reversed,
was in conflict with the Constitution of the United States. That
decision proceeded upon the ground that the state constitution
deprived the accused of a substantial right which the law gave him
when the offense was committed, and therefore, in its application
to that offense and its consequences, altered the situation of the
party to his disadvantage. By the law as
Page 171 U. S. 385
established when the offense was committed, Kring could not have
been punished with death after his conviction of murder in the
second degree, whereas by the abrogation of that law by the
constitutional provision subsequently adopted, he could thereafter
be tried and convicted of murder in the first degree, and subjected
to the punishment of death. Thus the judgment of conviction of
murder in the second degree was deprived of all force as evidence
to establish his absolute immunity thereafter from punishment for
murder in the first degree. This was held to be the deprivation of
a substantial right which the accused had at the time the alleged
offense was committed. But there are no such features in the case
before us. Statutes which simply enlarge the class of persons who
may be competent to testify in criminal cases are not
ex post
facto in their application to prosecutions for crimes
committed prior to their passage, for they do not attach
criminality to any act previously done, and which was innocent when
done, nor aggravate any crime theretofore committed, nor provide a
greater punishment therefor than was prescribed at the time of its
commission, nor do they alter the degree or lessen the amount or
measure of the proof which was made necessary to conviction when
the crime was committed."
The Court added:
"The crime for which the present defendant was indicted, the
punishment prescribed therefor, and the quantity or the degree of
proof necessary to establish his guilt all remained unaffected by
the subsequent statute. Any statutory alteration of the legal rules
of evidence which would authorize conviction upon less proof, in
amount or degree, than was required when the offense was committed
might, in respect of that offense, be obnoxious to the
constitutional inhibition upon
ex post facto laws. But
alterations which do not increase the punishment, nor change the
ingredients of the offense, or the ultimate facts necessary to
establish guilt, but, leaving untouched the nature of the crime and
the amount or degree of proof essential to conviction, only remove
existing restrictions upon the competency of certain classes of
persons as witnesses, relate to modes of procedure only, in which
no one can be said to have a vested right, and
Page 171 U. S. 386
which the state, upon grounds of public policy, may regulate at
its pleasure. Such regulations of the mode in which the facts
constituting guilt may be placed before the jury can be made
applicable to prosecutions or trials thereafter had, without
reference to the date of the commission of the offense
charged."
At the present term, in
Thompson v. Utah, 170 U.
S. 343, this Court observed generally that a statute is
ex post facto which, by its necessary operation and in its
relation to the offense or its consequences, alters the situation
of the accused to his disadvantage. But it took care to add:
"Of course, a statute is not of that class unless it materially
impairs the right of the accused to have the question of his guilt
determined according to the law as it was when the offense was
committed. And therefore it is well settled that the accused is not
entitled of right to be tried in the exact mode, in all respects,
that may be prescribed for the trial of criminal cases at the time
of the commission of the offense charged against him. Cooley, in
his treatise on Constitutional Limitations, after referring to some
of the adjudged cases relating to
ex post facto laws,
says:"
"But so far as mere modes of procedure are concerned, a party
has no more right in a criminal than in a civil action to insist
that his case shall be disposed of under the law in force when the
act to be investigated is charged to have taken place. Remedies
must always be under the control of the legislature, and it would
create endless confusion in legal proceedings if every case was to
be conducted only in accordance with the rules of practice, and
heard only by the courts in existence when its facts arose. The
legislature may abolish courts and create new ones, and it may
prescribe altogether different modes of procedure in its
discretion, though it cannot lawfully, we think, in so doing,
dispense with any of those substantial protections with which the
existing law surrounds the person accused of crime."
Applying the principles announced in former cases, without
attaching undue weight to general expressions in them that go
beyond the questions necessary to be determined, we adjudge that
the statute of Missouri relating to the comparison
Page 171 U. S. 387
of writings is not
ex post facto when applied to
prosecutions for crimes committed prior to its passage. If persons
excluded upon grounds of public policy at the time of the
commission of an offense from testifying as witnesses for or
against the accused may, in virtue of a statute, become competent
to testify, we cannot perceive any ground upon which to hold a
statute to be
ex post facto which does nothing more than
admit evidence of a particular kind in a criminal case upon an
issue of fact which was not admissible under the rules of evidence
as enforced by judicial decisions at the time the offense was
committed. The Missouri statute, when applied to this case, did not
enlarge the punishment to which the accused was liable when his
crime was committed, nor make any act involved in his offense
criminal that was not criminal at the time he committed the murder
of which he was found guilty. It did not change the quality or
degree of his offense. Nor can the new rule introduced by its be
characterized as unreasonable -- certainly not so unreasonable as
materially to affect the substantial rights of one put on trial for
crime. The statute did not require "less proof, in amount or
degree," than was required at the time of the commission of the
crime charged upon him. It left unimpaired the right of the jury to
determine the sufficiency or effect of the evidence declared to be
admissible, and did not disturb the fundamental rule that the
state, as a condition of its right to take the life of an accused,
must overcome the presumption of his innocence and establish his
guilt beyond a reasonable doubt. Whether he wrote the prescription
for strychnine, or the threatening letter to the church organist,
was left for the jury, and the duty of the jury in that particular
was the same after as before the passage of the statute. The
statute did nothing more than remove an obstacle arising out of a
rule of evidence that withdrew from the consideration of the jury
testimony which, in the opinion of the legislature, tended to
elucidate the ultimate essential fact to be established -- namely,
the guilt of the accused. Nor did it give the prosecution any right
that was denied to the accused. It placed the state and the accused
upon an equality, for the rule established by it gave
Page 171 U. S. 388
to each side the right to have disputed writings compared with
writings proved to the satisfaction of the judge to be genuine.
Each side was entitled to go to the jury upon the question of the
genuineness of the writing upon which the prosecution relied to
establish the guilt of the accused. It is well known that the
adjudged cases have not been in harmony touching the rule relating
to the comparison of handwritings, and the object of the
legislature, as we may assume, was to give the jury all the light
that could be thrown upon an issue of that character. We cannot
adjudge that the accused had any vested right in the rule of
evidence which obtained prior to the passage of the Missouri
statute, nor that the rule established by that statute entrenched
upon any of the essential rights belonging to one put on trial for
a public offense.
Of course we are not to be understood as holding that there may
not be such a statutory alteration of the fundamental rules in
criminal trials as might bring the statute in conflict with the
ex post facto clause of the Constitution. If, for
instance, the statute had taken from the jury the right to
determine the sufficiency or effect of the evidence which it made
admissible, a different question would have been presented. We mean
now only to adjudge that the statute is to be regarded as one
merely regulating procedure, and may be applied to crimes committed
prior to its passage without impairing the substantial guaranties
of life and liberty that are secured to an accused by the supreme
law of the land.
The judgment of the Supreme Court of Missouri is
Affirmed.