210 Mass. 78 | Mass. | 1911
The question in this case is whether a statute enacted after the commission of an offense is void as an ex post facto law because its effect is to provide that one in place of two qr more judges shall preside when the defendant is tried by a i™y-
The question thus raised is a question upon which the Supreme Court of the United States is the final authority. The general rule was laid down by that court in Duncan v. Missouri, 152 U. S. 377, 382, in these words: “It may be said, generally speaking, that an ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was
It was accordingly decided by the United States Supreme Court, in Gibson v. Mississippi, 162 U. S. 565, that a subsequent statute, requiring members of the grand jury to be persons of good intelligence, sound judgment and fair character as well as qualified voters and able to read and write, was not void as an ex post facto law; in Thompson v. Missouri, 171 U. S. 380, that a subsequent statute, providing that comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine should be permitted to be made by the witnesses and submitted to the jury, was a valid act; and in Mallett v.
To come to decisions nearer to the question in the case at bar, it was decided by this court" in Commonwealth v. Phillips, 11 Pick. 27, that a subsequent statute transferring jurisdiction from the Supreme Judicial Court to the Municipal Court was not void as an ex post facto law. In that ease Chief Justice Shaw said, at p. 31: “ A new tribunal may be erected, or new jurisdiction given to an existing court, to try past offenses, and this is not ex post facto.” In State v. Jackson, 105 Mo. 196, at the time of the killing, the court of appeal consisted of five judges a majority of whom made a quorum. By a subsequent constitutional amendment the number of judges of that court was raised to seven and it was divided into two divisions, one of which only had jurisdiction in criminal cases. That division consisted of three judges. It was held that “it was entirely competent for the people to adopt such a change in their organic law as to take away from this court as a whole all cognizance of criminal causes, and to confer such jurisdiction on a portion or division of this court, though less in numbers and different in personnel from this court as organized when the crime in question was committed.” The case of Commonwealth v. Phillips, 11 Pick. 28, was relied upon by the Supreme Court of Missouri in coming to that conclusion. For a similar decision see State v. Thompson, 141 Mo. 408.
Finally it has been a common practice in this Commonwealth to do the very thing here complained of, namely, to enact statutes reducing the number of judges who are to preside at the trial of capital cases without excepting from their operation and making special provision for cases where the killing took place before the statute was enacted. This is not decisive of the constitutionality of such acts, but this practice, extending over a number of years, is an indication of what by common consent has long been regarded as within the limits of the Constitution.
In the case at bar there was no change in the indictment that had to be found nor in the conduct of the trial by which the fact of the defendant’s guilt had to be established, nor in his right to have any and all questions of law reviewed by the same appellate court that was in existence when the alleged crime was committed. The only change was in the fact that one in place of two or more judges was to and did preside at the trial. The learned counsel for the defendant has frankly admitted that the only connection in which this change operated to the injury or prejudice of the defendant was in matters lying in the discretion of the presiding judge. His contention is that the fact that
The entry must be that the order denying the motion in arrest of judgment should be affirmed.
So ordered.
