66 Mo. 545 | Mo. | 1877
— At tbe November term, 1875, of tbe Buchanan circuit court, Bethurum was tried and convicted of forgery in tbe third degree, and sentenced to imprisonment in tbe penitentiary for a term of eight years, tbe maximum punishment for that ofíense being fixed by law at seven years imprisonment in tbe penitentiary, and be now asks to be discharged from said imprisonment on tbe ground that it was illegal. It is conceded that under tbe decisions of this court, in ex parte Page, 49 Mo. 291; ex parte Jilz, 64 Mo. 205, the petitioner is entitled to bis discharge, if tbe act of tbe General Assembly, approved March 1, 1877, entitled “ An act to prevent tbe discharge of persons by tbe habeas corpus act, who have been convicted of crime and erroneously sentenced,” be an ex post facto law, or retrospective in its operation, in tbe sense in which these terms are used in our State constitution. By tbe terms of tbe act, it relates to sentences which bad been pronounced when it was enacted, as well as to those thereafter to be pronounced. The preamble, reciting that many persons bad been erroneously sentenced, and were liable to be discharged at any time, by virtue of the provisions of tbe habeas corpus act, declared tbe existence of an emergency requiring the act to be in force and to take effect from and after its passage. Tbe first section provided that “ No person shall be entitled to tbe benefit of tbe provisions of tbe habeas corpus act, for the reason that tbe judgment, by virtue of which such person is confined, was erroneous as to time or place of imprisonment; but in such cases it shall be tbe duty of tbe court, or officer, before whom such relief is sought, to sentence such person to tbe proper place of confinement, and for tbe proper length of time, from and after tbe date of tbe original sentence, and to cause tbe officer, or other person having such prisoner in charge, to convey him forthwith to such
By the constitution of the United States, the several States are inhibited from passing “any ex post facto law, or law impairing the obligation of contracts.” By the 18th section, article 2, of the constitution of this State, the General Assembly is prohibited from passing any ex post facto law, or law impairing the obligation of contracts, or retrospective in its operation. With regard to ex post facto laws, and laws impairing the obligations of contracts, there was no necessity for an inhibition in our State constitution, for under the prohibition in the constitution of the United States, all such laws enacted by the Legislature of a State, would be inoperative and void; but there was no such inhibition in the Federal constitution in regard to retrospective laws, and therefore that clause in the section is to be construed so as to effectuate the purpose of the framers of the constitution. When words, which have long had a technical meaning, as used in statutes and judicial proceedings, are employed in constitutions and statutes, they are to be understood in their technical sense, unless there be something to show that they were employed in a different sense.
The terms ex post facto and retrospective, as employed in statutes and constitutions, had acquired a definite, legal meaning, long before the adoption of our constitution. In Calder v. Bull, 3 Dallas 386, Chase, J., said: “ The expressions £ ex post facto laws,’ are technical; they had been in use long before the revolution, and had acquired an appropriate meaning by legislators, lawyers and authors.” Blackstone in his Commentaries, 1 Yol. 46, thus defines the meaning of the expression, “ex post facto law:” ££ When, after an action, indifferent in itself, is committed, the Legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has* committed it.” In Calder v. Bull, 3 Dallas 386, Chase, J., declared an ex post facto law to be one which
Is it a retrospective law ? All ex post facto laws, and laws impairing, the obligation of contracts are, literally, .retrospective; but not in the technical sense of that term.
The constitution of 1865, Sec. 28, of the bill of rights, declared that “ no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passedyet in all the heated discussions which grew out of the provisions of that instrument imposing test oaths, it was never urged that those provisions were in conflict with that section. It is true that the test oaths were required, not by an act of the Legislature, but by the constitution itself, yet surely the framers of that instrument did not use the phrase “ law retrospective in its operation ” in its literal sense, and as applicable alike to crimes and criminal procedure, and civil obligations and proceedings in civil eases, otherwise they would be chargeable with having done the very thing which they had for
Prisoner Remanded.