66 Mo. 131 | Mo. | 1877
Lead Opinion
— The object of this writ is to test the legality of the confinement of Houston in the penitentiary, pursuant to judgment and sentence of the Scott circuit court for grand larceny, the crime being committed and indictment found prior to January 1st, 1877, though the trial did not occur until after an act went into effect, changing in certain cases what was theretofore known as grand larceny into petit larceny, and making also different provision for the punishment'of crimes of the class for which the prisoner received his sentence. Passing over all mere preliminary questions, we proceed to discuss the merits of the case.
The act referred to was approved March 1, 1877, went into effect July 28th of that year, and is as follows : § 1. That section 25 of chapter 201 of the General Statutes of Missouri, be, and the same is hereby amended by striking out the word “ten” and inserting the word “twenty,” so as to read as follows : § 25. Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, right in action, or other personal property or valuable thing whatsoever, of the value of twenty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep or hog belonging to another, shall be deemed guilty of grand larceny.
§ 2. § 27 of the same chapter of the General Statutes be, and the same is hereby amended by striking out the word “ ten ” and inserting the word “ twenty,” so as to read as follows: § 27. Every person who shall steal, take and carry away any money or personal property or effects of another, under the value of twenty dollars, (not being the subject of grand larceiy without regard to value,) shall be deemed guilty of petit larceny, and on conviction shall be punished by imprisonment in the county jail not exceeding
Section 6, (2 ~W. S., 895,) provides that: “No offense committed, and no fine, penalty or forfeiture incurred, previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; but the trial and punishment of all such offenses, and the recovery of such fines, penalties and forfeitures, shall be had in all respects as if the provision had remained in force.”
This section must be held as decisive of this case. According to it, had the old statute been absolutely repealed, the prisoner must still have met with punishment “ in all respects as if the provision had remained in force.” This is precisely the view taken of the effect of this section in State v. Mathews, (14 Mo. 183,) Mr. Justice Ryland in that case holding that the section just quoted, operated as a “saving clause” in the prevention of the operation of the repeal. Shall an amendment, a partial repeal, accomplish more than could a total one ? This question would seem to furnish its own answer.
Besides, the language of the act of March 1st, 1877, is directed to the future and not the past: “ Every person who shall steal,” &c. And the general rule of construction is that legislation is to be regarded as prospective and not retrospective in its operation. State v. Hays, (52 Mo. 578); Lewis v. Brackenridge, (1 Blackf. 220.) This is especially true of laws relating to crimes and their punishment. There is positively nothing in the act under consideration, even remotely indicative of legislative intention, either to abrogate section 6, supra, or to affect in the slightest degree, antecedent criminal occurrences; and in my opinion if the legislature had evinced in the act of 1877 the most decided intention of making that act applicable to the punishment of prior transactions, it is to the last degree doubtful whether such act, regard being had to the terms thereof, would not have been violative of the constitutional prohi
The first definition of an ex post facto law' above given that it “renders an act punishable in a manner in which it was not punishable when it was committed,” is readily understood ; a bare inspection of the former and subsequent acts will speedily show whether any change has been made. in the punishment to be inflicted. But the ground becomes vastly more debatable when the inquiry • arises upon a particular statute, whether it does indeed mitigate the previously imposed punishment. There has been great diversity of opinion as to what in this connection, constitutes mitigation. In Texas, it has Been held not to mitigate the punishment, where, for the death penalty was substituted the infliction of stripes, and this upon the ground of the peculiarly degrading character of the latter method of punishment, (Herber v. State, 7 Tex. 69). On the other hand in South Carolina, where the punishment, death, was before final judgment changed to fine, whipping and imprisonment, the new law was applied in passing sentence, (State v. Williams, 2 Rich. 418). In Indiana the law in force, punished perjury, by not exceeding 100 stripes. In a certain case, before trial, the punishment was changed to imprisonment in the penitentiary, not exceeding seven years. (Strong v. State, 1 Blackf. 193,) and the last act was held applicable and not obnoxious to constitutional objections. This decision has, however, met with criticism from Mr. Bishop, (1 Bish. Or. L., § 219). On this point, Mr. Justice Cooley, with much pertinency, remarks: “ But, what does go in mitigation of the punishment ? If the law makes a fine less in amount, or imprisonment shorter in point of
In Hartung v. People, 22 N. Y. 105, Mr. Justice Denio speaking for the court said: “It is enough to bring the law within the condemnation of the constitution, that it changes the punishment after the commission of the offense, by substituting for the prescribed penalty a different one. We have no means of saying whether one or the other would be most severe in a given case. That would depend upon the disposition and temperament of the convict. The Legislature cannot thus experiment upon the criminal law. * * It is enough, in my opinion, that it changes the punishment in any manner, except by dispensing with divisible portions of it.” This line of decision, which has become settled law in New York, (Shepherd v. People, 25 N. Y. 406; Patzky v. People, 29 N. Y. 124; Kuckler v. People, 5 Park. Cr. Rep. 212,) I regard as enunciating the better doctrine, since it is easily understood, and the twofold test which it furnishes, readily applied, viz: Has a
My' associates concur with me in the foregoing remarks, except that portion relating to the power of the 'Legislature, by the passage of a law to affect crimes of anterior commission; on this point, deeming it unnecessary, they decline the expression of opinion.
Concurrence Opinion
Concurring. — I concur m the judgment of the court remanding the prisoner to the custody of the warden.
I do not conceive that there is any constitutional question in this case. The act of March 1st, 1877, reducing the grade of the offense committed by the relator from grand larceny to petit larceny, is, by its terms, as well as by the provisions of the General Statutes, applicable only to offenses committed after the passage of the act, and this view of that act disposes of the case.
Prisoner Remanded.
