5 Wyo. 526 | Wyo. | 1895
The petitioner for the writ of habeas corpus, Isaac Chandler, was convicted in the district court for Laramie County of the crime of assault and battery with the intent to kill and murder, and on the 7th day of June, A D. 1895, was sentenced to imprisonment in the penitentiary for the term of fourteen years. He applies for the writ of habeas corpus, alleging that his imprisonment is unlawful, because the justice of the peace before whom he was examined on said charge refused to grant him, upon his sworn application therefor alleging the prejudice of the magistrate, an examination before some other justice of the peace of the county wherein the offense was alleged to have been committed. The time fixed in the information or complaint before the justice of the peace when the offense was committed was January 3, 1895. At the time of the commission of the offense as alleged in the complaint, the statute, Section 3441 of the Revised Statutes of Wyoming, as amended by Chapter 17 of the Session Laws of 1890, provided among other things that if upon the return of the process or the appearance of the parties in any civil cause or proceeding “or upon any criminal examination” either party, his agent or attorney shall make affidavit that from prejudice, bias or other cause, he believes that the justice of the peace before whom the cause is pending will not decide impartially in the matter, the said justice shall transfer said suit and all papers appertaining thereto to some other justice of the peace of the same or adjoining precinct against -whom no such objection has been raised, who may thereupon proceed to hear and determine the same in the same manner as it would have been lawful for the justice before whom the cause or proceeding was commenced to have done. This last mentioned act was repealed and Section 3441 of the Revised Statutes amended thereby, was re-enacted in such manner as to remove all reference to criminal proceedings or criminal examinations, by Chapter 84 of the Session Laws of 1895, which by its terms took immediate effect and which became a law upon the approval of the Governor, February 18, 1895, two days before the complaint was
. The petitioner at his preliminary examination, notwithstanding the repealing statute, filed his affidavit and motion, before the examining magistrate, the affidavit alleging that the “affiant has been reliably informed and verily believes that there exists in the.mind of H. Glafcke (the magistrate) a prejudice against said defendant, such as .would preclude said Glafcke from giving said defendant .a fair and impartial hearing or. examination,” and further, “that said affiant has been informed and verily believes that there- exists in the mind of L. E. Stone, a justice of the peace of Cheyenne precinct in Laramie County, Wyoming,, and in the mind of one Charles Carlstrum of Pine. Bluffs precinct.in said -county and State, ■and a - justice of the- peace within and for said precinct, a prejudice, such as would preclude both said L. E. Stone and said. Carlstrum from giving said.'defendant a fair, and impartial examination in -said mátter.” The objection was therefore made to three justices, of the peace of the county wherein the offense was. alleged, to be committed by this affidavit. ' The justice .of the. peace, refused the application for change of venue, doubtless because of the passage of the repealing statute -taking away the right of a defendant in a criminal cause or proceeding to a.change of venue in a preliminary examination.
The attention of- the district court .was called to this matter by. a-plea in abatement before .the. trial and by a motion in arrest of judgment, both of. which were .overruled by the trial court.
■ The petitioner claims that the statute, Chap. 84, Sess. Laws 1895, in repealing or" attempting to repeal, without a saving clause, the prior-statute providing for a change of venue in a preliminary examination before' a justice' of the- peace in .criminal eases, is ex. post facto and void as' to him, as the ■offenee with which he was charged was alleged to have been committed January 3, 1895, and that the act of February 18, 1895, could hot deprive him- of the. right to object by affidavit to the justice .of the peace before whom he was brought
. It is doubtful if the record discloses sufficient facts to enable us to determine whether or not the offense with which the petitioner is charged occurred prior to the passage of the statute of February 18th, which took away the right to a change of the place of the examination or in the examining magistrate. We do not have before us in this proceeding the record of the district court sufficient to show when the alleged offense was committed. The allegation in the information filed before the examining magistrate on the 20th of February, 1895, alleges that the offense occurred, on the 3d day of January of that year, but this is not conclusive upon the prosecution, and under a familiar rule of criminal law, the prosecution may lay one day in the information and .prove that the offense was committed upon any day prior
However, we have determined to decide this proceeding upon the question involved in the briefs of counsel, and to consider only the validity of the statute which it is claimed took away the right of the petitioner in the examining court to secure a change of magistrate or place of trial, and treating the date of the eommisison of the offense to be prior to the enactment of the challenged statute.
There is no doubt that the statute as it originally stood was liable to great abuse, and it is no wonder that the legislature sought to repeal it. In the case at bar, the relator objected to three magistrates of the county, and it would seem that he could have objected to all but one and thus have chosen his magistrate, or for that matter to all of the magistrates in the county and thus have forced the prosecution to resort to a grand jury to secure an indictment, for as the act stood in its primitive simplicity, it provided that if the affidavit be filed that from prejudice, bias or other cause the defendant believes that the justice will not decide impartially in the matter, the proceeding shall be transferred to some other justice of the same or adjoining precinct “against whom no such objection has been raised.” It will be seen, therefore, that the relator under the provisions of this statute was quite modest, as he objected to but three justices of the peace when he might have filed his affidavit against every one in the county, if he “believed” that they were all prejudiced against him.
It is asserted that the petitioner was deprived of a substantial right by the repealing statute, and that being so deprived of a substantial protection afforded to him by the law existing at the time of the commission of the offense, that of the right upon information and belief to object to one, three or any number of examining magistrates of the county,
The development of the law relating to the guaranty of the fedéral constitution that “no State -shall pass an ex post facto law” is remarkable. It has sprung from -definitions in decisions wherein such definitions are the clearest dicta, and it will be somewhat interesting to trace the federal decisions to the present time, and to ascertain-what the views of the national tribunal of last resort have been and are, for the definition and- classification of ex post facto laws.. The rule established by that great tribunal should- be followed, as the determination of what is or what i-s not an ex post facto law is necessarily under the guaranty of the federal constitution, a federal question, as well as a question arising under. the provisions of our State constitution.
In the Kring case, the following language is used in the majority opinion: “Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation after the offense was committed, and such legislation not held to be ex post facto because it relates to procedure, as it does according to Mr. Bishop? And 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.” Upon these excerpts last quoted have been built up many hopes of convicted criminals, but we think this language is dictum, and it has so been held by other State courts than this. Lybarger v. State, 2 Wash. St., 552; In re Wright, 3 Wyo., 478.
In the majority opinion in Ex parte Medley, 134 U. S., at page 171, written by Justice Miller, the court goes further, and defines an ex post facto law to be, among other things,
This resume of the authoritative federal decisions, however conflicting they may seem, or however unsatisfactory they may be in defining what is and what is not an ex post facto law, shows, we think, that the court has not established as law the broad definitions laid down in the Kring and Medley cases, but that the definition of Mr. Justice Washington, quoted in Kring v. Missouri, may be relied upon, that a law which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage, is an ex post facto, law, as this formula evidently comprehends and is the sum of all the definitions.
The State courts have strongly leaned to the position that
. Laws have been held constitutional which after the commission of an offense decrease the number of a jury in trials for misdemeanors, State v. Carter, 33 La. Ann., 1214; which provide that in all questions affecting the credibility of a witness, his general moral character may be given in evidence, Robinson v. State, 84 Ind., 452; which authorize the punishment of a person for an offense previously committed, and as to which all prosecution and punishment were barred at its passage, according to pre-existing statutes of limitation, State v. Moore, 42 N. J. L., 208; which reduces the number of peremptory challenges allowed the accused; Dowling v. State, 5 Sm. & M. (Miss.), 664; Mathis v. State, 31 Fla., 311; which changes the manner of summoning a jury; Perry v. Com., 3 Gratt., 602; which allows amendments to pending indictments, 14 Tex., 402; which prevents the defendant from taking advantage of variances in the indictment, Com. v. Hall, 97 Mass., 570; which gives the State seven peremptory challenges, State v. Ryan, 13 Minn., 370; Webster v. Com., 16 B. Mon. (Ky.), 16, 40; requiring the jury instead of the court to fix the punishment, Holt v. State, 2 Tex., 363; making the court instead of the jury, judges of the law, Marion v. State, 20 Neb., 236; changing the place of trial after the commission of the offense, State v. Gut, 13 Minn., 341; clothing justices‘of the peace with jurisdiction over crimes previously committed, State v. Welch, 65 Vt., 50; dividing a county into judicial districts, Potter v. State, 42 Ark., 29; repealing a law providing for preliminary examinations after indictment found, Jones v. Com., 86 Va., 661; changing method of prosecution from indictment to information by prosecuting attorney, People v. Campbell,
By our statute taking away the right of the accused to object by an affidavit made upon information or belief to the examining magistrate, after the commission of felony, the petitioner was not deprived of any substantial right or protection, as it is within the power of the legislature to change the form and method of procedure in any manner which in relation to the crime or its consequences, does not alter the situation of the accused to his disadvantage, and the situation of the prisoner was not so changed by the statute challenged by him. It can not be seriously contended that all who may have committed criminal offenses prior -to the date of the statute repealing the law providing that the defendant may upon his own statement upon information and belief secure a change of place of trial, shall have the right for years to come as we have no statute of limitations relating to crimes or misdemeanors, to be considered as pardon'ed by the legislature or as entitled to the right under a repealed statute to object to the magistrate before whom they are brought upon complaint and warrant to answer a criminal charge of which the magistrate has not full jurisdiction to hear, try and determine. True in one case, the right of a change of venue in preliminary examinations is said to be a ■substantial and important right of which the accused can not be deprived except by his own act, State v. Sorenson, 84 Wis., 27, but this is a right given under a statute already existing. If the statute had been repealed, it is doubtful if the Wisconsin court would hold in face of all the authorities that the right to a change of place of trial, being a method of procedure in which no one has a vested right, can not be taken away by a statute after the commission of the offense. Cook v. U. S., 138 U. S., 183; Gut v. State, 9 Wall., 38; Hopt v. Utah, 110 U. S., 589.
The right to a change of place of trial, or a change of judge in case where the magistrate or judge is disqualified by prejudice, or where there can not be a fair trial owing to the prejudice in the community against the accused always
By no accepted definition of an ex post facto law is this statute which sweeps away the provision that the accused may secure a change of magistrate or place of preliminary examination in a criminal case, upon his affidavit of belief of the prejudice of the magistrate before whom he has been brought for such examination, an ex post facto law. It does not make criminal what before its enactment was innocent; it does not inflict greater punishment than was attached to the crime when committed; it does not alter the rules of evidence and direct that less or different testimony may be received than required at the time of the commission of the offense; and it does not alter in relation to the crime or its consequences, the situation of the accused to his disadvantage. If we go further and add other means invented in some of the cases for the detection of an ex post facto law, it does not deprive him of any substantial or vested right provided by law at the time of the guilty act for his protection. It is necessary in the administration of justice that one accused of crime should have a fair trial before an impartial and unprejudiced judge and jury, and even an examination on the initial or preliminary inquiry before an impartial and unprejudiced magistrate. Nowhere does the record show that the petitioner has been shorn of any of these substantial rights and privileges, for if the examining tribunal, the court of inquiry, was prejudiced against him, we have no knowledge of that fact from the record, and it is not even asserted' that the allegations of the defendant upon information and belief made in his affidavit alleging such prejudice before the examining magistrate were true. It merely appears that he believes them to be true, and this is insufficient under the statute in force at the time that he was complained against at the preliminary examination. Endless confusion would result from a decision by us that the
The writ is disallowed and the petition for the writ is dismissed.
In accordance with the provisions of the habeas corpus act, the clerk of this court will return the petition for the writ to the petitioner or the person applying for the writ, with a certified copy of this opinion containing the reasons .of this court for disallowing and refusing the writ.
Writ of habeas corpus denied. .