State v. Duestrow

137 Mo. 44 | Mo. | 1897

Lead Opinion

Sherwood, J.

Upon the facts contained in the foregoing and accompanying statement, we are to determine the validity of the various errors assigned on behalf of defendant; they are twelve in number.

1. Relative to the retention on the panel of the juror Heeger, as to which exception was saved, it appears that he had heard only fragmentary portions of the testimony adduced at three former trials, two of which were confined to the sole issue of insanity,' and the last was a mistrial on the issue of defendant’s guilt of the crime charged. Heeger having other business in town, would occasionally drop into the courthouse and listen a few moments to the testimony, but in all the trials he had not been in the courtroom much more than an hour.

These facts bring this case fully within the ruling announced in State v. Taylor, 134 Mo. 109. We went over the subject quite extensively in that case, and do not care to do so again. Besides, defendant in his challenge for cause does not charge that Heeger had formed or expressed an opinion from what he had seen in the papers or heard from the witnesses, and if this had been done it would have been amply refuted by the singularly frank statements of the old Herman farmer, showing in a manner not to be misunderstood that he had neither formed nor expressed an opinion upon the guilt of the accused, and had no feeling ■against the plea of insanity; very sensibly adding, -however, that he would not believe in insanity unless it were proven.

The challenge for cause, as already stated, is not based on any of these grounds, but upon the ground “that said Heeger was prejudiced against the defendant, ■and could not afford defendant a fair trial, and did not sufficiently understand the English language to properly act as a juror.” In what the alleged prejudice consisted is not pointed out, and the lack of sufficient knowledge of the English language is based upon the 'fact that Heeger, though he could read English, could not explain the meanings of the words “prejudice’'’ and “bias.” This inability of Heeger readily to define, or his hesitancy in defining these words, we do not regard as sufficient to disqualify him from fully ■discharging his duties as juror, and if they did, his inability or hesitancy would be shared by many respectable citizens of this state.

2. No valid objection can be taken against tho law of 1895 (laws of that year, p. 165 et seq.), because it was enacted after the commission of the crime charged in the indictment. That law simply shortened the time for making challenges from forty-eight to twenty-four hours, and constituted but a change in the mere method of procedure, and as such is not obnoxious to the charge of unconstitutionality, either under the national or state constitutions. Such methods of procedure are subject to the will of the legislature, and do not, speaking in a general way, impinge any vested or substantial rights of a party accused. State v. Taylor, 13 Mo. loc. cit. 113 et seq. and cases cited.

3. Error is asserted to have occurred in allowing the state to recall its own witness, one E. O. Eggling, Jr., and ask him leading questions. Repeated decisions of this court have established that it is matter-resting in the sound discretion of the court whether, in any case, leading questions shall be asked, and if asked, though improperly, this does not constitue reversible error.

Eggling, on a previous trial occurring but a few months before, had testified to a conversation which had taken place between him and defendant the night before the homicide, in regard to some-sewering, which witness was to do, and in the same short conversation, defendant, speaking in reference to his wife, said, “I will get rid of that son of a b-some time.” This-latter portion of the conversation witness could not recollect, or so pretended. This conduct on the part of this recalcitrant witness, furnished ample ground for asking him direct questions, questions otherwise inadmissible only in case of cross-examination.

Touching the point in hand, Grreenleaf says: “In some cases, however, leading questions are permitted, even in a direct examination, — namely, where the witness appears to be hostile to the party producing him, or in the interest of the other party, or unwilling to give evidence; or where an omission -in his testimony is evidently caused by want of recollection, which a suggestion may assist. * * * So, where, from the nature of the case, the mind of the witness can not be directed to the subject of inquiry, without a particular specification of it; as where he is called to contradict another, as to the contents of a letter, which is lost, and can not, without suggestion, recollect all its contents, the particular passage may be suggested to him. * * * Indeed, when and under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court, and not a matter which can be assigned for error.” 1 G-reenl., Evid. [14 Ed.], sec. 435, and cases cited. See, also, 2 Elliott’s Gen. Prac., sec. 613.

The above cited authorities fully justify the asking of the' questions propounded to this unwilling witness, and it was unnecessary for the state to plead surprise or of having been misled, since both those elements were patent to the most casual observation, since nothing could more conduce to surprise than to have a witness who had previously testified to the whole of a short conversation, but a few months before, and then, afterwards forget, or pretend to forget, the latter and more striking portion of that conversation in relation to threats made against the life of the wife. And such right to ask the hostile witness leading questions, was not at all affected by reason of the fact that the witness was recalled for that purpose. Nor was it affected by reason of the fact that such questions had a tendency to show that the witness had been tampered with by the party who was greatly interested in procuring or producing a lapse of memory on the part of the non-remembering witness. Nor does it at all affect the propriety of such questions that they may incidentally have the effect of impeaching such witness. Courts should not be averse to letting in the light of day on such reprehensible transactions. The lower court, however, out of abundant caution gave, at the instance of defendant, an instruction which excluded the testimony of Eggling, worthless as it was, from the consideration of the jury; so that even if error was committed in this regard, which we do not admit, it would have been cured by the instruction given.

4. Error, it is urged, was committed in the admission of testimony on the part of the state tending to show that defendant, when drinking, would be quarrelsome, apt to draw his pistol, and prone to be bullying-toward those with whom he came in contact, and who would not resist him.

The object of the introduction of this evidence-seems to have been to show what manner of man defendant was, in order that the jury might the more readily determine the disposition of defendant, make comparison between his acts at various times and those-which immediately preceded and accompanied the homicidal act, and thus be enabled to form a more correct idea of whether defendant was insane at the time-the fatal act occurred. It is difficult to fix the range of legitimate inquiry in such cases. It would seem it. ought to embrace within its comprehensive scope substantially all of the material portions of the party’s previous life; certainly everything tending to shed light, on the then pending investigation. But apart from such considerations, we are not prepared to hold that such evidence being introduced would constitute reversible error, since it does not appear that its introduction could have prejudicially affected the rights of defendant. Besides it was not like a case where evidence is introduced as to the commission of other crimes by a person accused.

5. As to the introduction of testimony tending to-show that defendant was enamored of a courtesan by the name of Clara Howard, and frequently visited her at her house of assignation kept by her, and stayed all night; such evidence was admissible as showing a motive which might prompt defendant to rid himself of his. wife. Whart. Crim. Evid. [9 Ed.], sec. 785.

6. Intimately connected with these frequent-adulteries of defendant, was the fact of his possession and exhibition of certain articles which are supposed to give greater sexual pleasure to women, as defendant stated. Now if adultery is admissible to be shown as. furnishing a motive for the commission of a crime, certainly such evidence would be greatly strengthened by showing also a lecherous disposition on the part of the adulterer, which prompted the purchase, possession and exhibition of the articles aforesaid. In a word, the more intense the lascivious feeling and passion, the stronger would probably be the motive to remove any obstacle in the way of the full gratification of such abnormal sexual desire. Under this view, evidence of the possession and exhibition of such articles was not inadmissible; in fact, quite pertinent.

7. Next for discussion is the correctness of the action of the trial court in reference to the admission of the expert and nonexpert testimony on the part of the state respecting the sanity or insanity of defendant. The hypothetical questions propounded to the experts fully outlined all material facts necessary to base an opinion regarding the sanity or insanity of defendant, and no more than this could be required. Indeed the hypothetical questions put to the experts on behalf of the state were the same in substance and perhaps literally as those put by defendant’s counsel to his own experts.

As to the non-experts who testified on the part of the state, some had more acquaintance with defendant than others, but all had sufficient acquaintance to be able to judge of his sanity, and as to the opportunities of such non-experts to form correct opinions, the jury could best determine as the triers of the facts.

8. No error occurred in the remarks made by the court to one of counsel for defendant, “Take as much time as possible,” and “I think you are reading for your own amusement.” These remarks were brought out by an exceedingly prolix and extended cross-examination of Dr. Bauer, and it was not improper for the court in this way to rebuke the wholly unnecessary consumption of time. And in any event, no prejudice could occur to defendant by reason of such remarks. State v. Musióle, 101 Mo. loe. cit. 273.

9. The instructions, fifteen in number, fully covered every phase of the case and left nothing to be desired. They embraced all the issues presented by the allegations of the indictment and the testimony. They are approved by many decisions of this court. One of the instructions in regard to insanity, as pointed out in the brief of counsel for the state, has received our frequent approval; the clause complained of in the instruction is the following: “To entitle the defendant to a verdict of not guilty by reason of his insanity, the law requires him to prove it; not, however, beyond a reasonable doubt, but only to your reasonable satisfaction.” As the instructions will accompany this opinion, it is deemed unnecessary to quote them at length.

' 10. There was abundant evidence to show that defendant was voluntarily intoxicated at the time of the homicide, and thus to support an instruction on that point, so that the objection on that score is unsustained hy the record.

11. Some two months preceding the homicide, Katie Hahn heard sounds proceeding from Mrs. Dues-trow’s bedchamber as if defendant were beating his ■wife, and the next morning she appeared with a black «ye, and it was proposed by defendant to prove at the trial by Miss Louise Leisse, that Mrs. Duestrow, her sister, told her that her eye was blackened by the boy Louis bumping his head against her face. This proposed statement was no part of the res gestae; was mere hearsay, and therefore properly rejected. We will not dignify this point by discussing it; there was no error In excluding such a statement.

12. It is asserted that the court should have instructed the jury on murder in tlje second degree. We are of a different opinion and for several reasons: In the first place, in order to take advantage of any omission by the trial court in this respect, defendant should at the close of the giving of instructions on behalf of the state, have excepted because the jury had not been instructed upon all questions of law, etc. State v. Cantlin, 118 Mo. loc. cit. 111; State v. Paxton, 126 Mo. loc. cit. 514, and other cases.

An answer equally good to defendant’s contention on this point is found in the circumstances of the homicidal act, which gave origin to the present prosecution. Defendant, after accusing his wife in the grossest terms of improper conduct, slaps her twice in the face and then with a blow of his huge fist strikes her in the side and knocks her over against the bed, then points the pistol at her and when remonstrated with by her and asked not to fool with his pistol, that he must be drunk, replies, “No, I am not drunk — I will show you whether I am drunk or not,” and then the servant fled up stairs, then she heard the now thoroughly alarmed wife pleading in vain for mercy to one in whose brutalized bosom no mercy dwelt, then a shot is heard, and the servant rushing down stairs sees the wife prostrate on the floor of the hall and defendant kneeling beside her asks if she is dead, then the servant sees him seize his little boy, about two years old, press the pistol to his child’s breast, and as she turned her head away and ran down stairs, she heard a shot and then another. Afterward the wife was found fatally wounded on the floor of the hall, in an unconscious condition, her face powder-burned, with three bullet wounds in her head, the child shot through the breast and head, an empty revolver on the floor with six empty chambers recently discharged, marks of bullets on the walls and clots of blood and brains on the floor.

It is well settled at common law, still in force in this state, that when a homicide is committed in circumstances of great barbarity and cruelty, such brutal malignity will supply the place of malice, and make the act of killing equivalent to a deliberate act of slaughter, murder at common law and murder in the first degree under our statute. State v, Kloss, 117 Mo. 591, and cases cited.

If, then, defendant was sane at the time he did the shooting, and so the jury have found, he was guilty of nothing less than murder in the first degree. Again, it can not be doubted that defendant, if criminally responsible, was guilty of a higher grade of murder than that of the second degree when he shot his boy. This act being coincident and concurrent with that of shooting the wife, gives color and import to the act of shooting, the wife. If shooting the boy was murder in the first degree, so, also, sanity existing, was the act of shooting the wife.

13. Finally, it is claimed that the verdict was against the evidence and should be ascribed to prejudice. To the jury exclusively belonged the determination of the sanity of the defendant; that being affirmatively determined', the question of defendant’s guilt followed as the necessary and only corollary of such prior determination. There are no indications of prejudice on the part of the jury that we can discover in this voluminous record of over two thousand, five hundred type-written pages. On the part of defendant there were disclosed such features of intelligence, such a distinct memory of what had transpired at the homicide, such a sense of danger and apprehension from the act done, such an anxiety to know the grade of offense and to describe the act as an accident, such a desire to escape punishment by clumsy attempts at simulating insanity that no wonder an honest jury of Franklin county found the verdict they did. We therefore affirm the judgment and direct that the sentence pronounced by the law be executed.

All concur.

In bano, February 11, 1897. On motion to transfer

TO COURT IN BANO-

Macfarlane, J.

The constitutional amendment discussed in the opinion is as follows:

“Section 1. The supreme court shall consist of seven judges, and, after the first Monday in January, 1891, shall be divided into two divisions as follows: One division to consist of four judges of the court, and to be known as division number one; the other to consist of the remaining judges, and to be known as division number two. The divisions shall sit separately for the hearing and disposition of causes and matters pertaining thereto, and shall have concurrent jurisdiction of all matters and causes in the supreme court, except that division number two shall have exclusive cognizance of all criminal cases pending in said court, provided that a cause therein may be transferred to the court as provided in section 4 of this amendment. The division of business, of which said divisions have concurrent jurisdiction, shall be made as the supreme court may determine. A majority of the judges of a division shall constitute a quorum thereof, and all orders, judgments and decrees of either division, as to causes and matters pending before it, shall have the force and effect of those of the court.

“Sec. 2. Upon the adoption of this amendment,' the governor shall appoint two additional judges of the supreme court, who shall hold their offices until the first Monday in January, 1893, and at the general election in the year 1892 their successors shall be elected, who shall hold their offices for the term of ten years, as other judges of the supreme court. The two judges appointed by the governor, together with the judge elected at the general election in the year 1890, shall constitute division number two, and the remaining judges shall constitute division number one. The court shall elect its chief justice and each division a presiding judge thereof.

“Sec. 3. The supreme court shall assign to each division the causes and matters to be heard by it, of which assignment due public notice shall be given; and all laws relating to practice in the supreme court, as well as the rules of the supreme court, shall apply to each division so far as they may be applicable thereto. The opinion of each division shall be in writing, and shall be filed in the causes in which they shall be respectively made dui'ing the term at which the cause is submitted, and such opinions shall be a part of the records of the supreme court. Each division shall have authority to issue the original writs and exercise the powers enumerated in section three of article six of the constitution.

“Sec. 4. When the judges of a division are equally divided in opinion in a cause, or where a judge of a division dissents from the opinion therein, or where a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; or, where a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision.

“Sec, 5. Whenever, in the opinion of the supreme court, the state of its docket with reference to the speedy disposition of the business of the court will justify dispensing with the divisions hereinbefore provided, the court shall dispense therewith, and the court shall thereafter hear and determine all causes pending in it: Provided, however, that the court shall have the power to again divide itself into two divisions, in like manner and with like power and effect as hereinbefore provided, whenever, in the opinion of sis judges thereof, entered of record, the condition of its docket with reference to the speedy disposition of the business of the court shall so require, and in such division the four judges oldest in commission shall constitute division number one, and the remaining judges division number two.

“Sec. 6. All provisions of the constitution of the state and all laws thereof not consistent with this amendment shall, upon its adoption, be forever rescinded and of no effect.”

Defendant was convicted by the circuit court of Franklin county of murder in the first degree, and from the sentence he appealed to the supreme court. The appeal was heard by division two of the court, and the judgment of the circuit court was affirmed. After an unsuccessful motion for a rehearing, a motion jffas filed in said division to transfer the cause to the court in banc for a rehearing, on the ground that a federal question was involved. This motion said division also overruled, holding that no federal question was involved. Defendant now makes application to the court, sitting in banc, to order said cause transferred for a rehearing therein for the same reason urged in the division; namely, that the proceedings involve a federal question.

The only question directly presented for bur consideration on this motion, is, whether the court, sitting in banc, has power, under the amendment to the constitution adopted in 1890, to review the action of a division of the court and determine whether a federal question is involved and to order a transfer of a case to the court in banc after such division has unanimously decided that there is no federal question in the case.

By section 1 the court is divided into two divisions. Division two, consisting of three judges, is given exclusive cognizance of all criminal cases. Division one has only civil jurisdiction. Each division has concurrent jurisdiction in civil cases. The divisions are required to sit separately for hearing and disposition of causes and matters pertaining thereto. Section 3 provides that all laws relating to practice in the supreme court, as well as the rules of the supreme court, shall apply to each division so far as they may be applicable thereto, and requires the opinions of the divisions to be in writing and filed in the causes in which they shall be respectively made.

Division number two is thus given exclusive and independent jurisdiction of all criminal cases. Its jurisdiction is as independent of the court as it is of division one. It is the court of last resort in all criminal cases. No superintending control is reserved over it, nor does an appeal or writ of error lie from it to the court.

But section 4 does provide for transferring causes from a division to the court in certain cases. That section reads as follows:

“Sec. 4. When the judges of a division are equally divided in opinion in a cause, or where a judge of a division dissents from the opinion therein, or where a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; or, where a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision.”

Does this section give to the court in banc the power claimed by defendant under his motion? We are of the opinion that it does not'.

It can not be said that this section gives to the supreme court superintending control over a division. By the original constitution the supreme court has superintending control over inferior courts only. But a division can not be said to be inferior to the court. The judgment of a division has the same force and effect as the judgment of the court. Neither the subject-matter of the suit, the amount in dispute, nor the question involved, distinguishes the jurisdiction of the court from that of a division. The court, and the divisions, therefore, have concurrent jurisdiction in civil matters and division two has exclusive jurisdiction in criminal eases. The divisions are not, therefore, inferior courts within the meaning of article 4, section 3, of the constitution which gives the supreme court superintending control over inferior courts.

Nor is such power of control inherent in the court. The highest courts of this country do not represent the sovereignty as formerly did the court of King’s bench in England, in which the inherent power to control all inferior courts resided. In this country the superintending power of one court over another, if it exists at all, does so by virtue of constitutional or statutory authority. The power of supervision resides in the supreme court of Missouri only by virtue of the sovereign authority of the people expressed in their constitution. High, Extra. Leg. Rem., ch. 12.

No power is given the court to control, in any respect, the disposition of criminal causes or matters pertaining to them, but all laws relating to practice in the supreme court, as well as the rules of the supreme court, as far as they may be applicable thereto, shall, apply to their disposition.

Motions filed subsequent to a judgment in a cause are matters pertáining thereto and must be filed in the division which rendered the judgment. If the determination of such a motion requires the finding of a fact or the settlement of a legal question, such division must hear and decide it. They are given the same power to decide matters of that kind as to decide the case itself, and their judgments on such matters are as conclusive. A writ of error, or a motion in the court in banc intended to subserve the same purpose, no more lies from a judgment on a motion, than from the judgment on the merits. In each case the judgment of a division is the judgment of a court of last resort, and ends the matter decided. .

The existence or non-existence of a federal question in a cause may sometimes be in doubt and judges may differ in their opinion on the question. Yet a division of the court is fully as competent to determine that question as the more important one involving the merits of the case, in which the power is not, and indeed can not be, disputed. Its unanimous judgment on incidental questions is also conclusive.

In this case division two heard the appeal on its merits. The application to transfer was properly made to it. The right to a transfer depended upon whether a federal question was involved. That was a question for that division to settle. It did so by finding that no federal question was involved, or, as the application was denied, we must presume it so found. The court sitting in banc is given no power to review that decision.

Defendant’s motion is overruled. Barclay, C. J., and Robinson, J., dissent. The other judges concur.

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Dissenting Opinion

Barclay, C. J.

(dissenting). — 1. Section 4 of the constitutional amendment of 1890 confers an absolute right to a transfer to the court in banc when certain facts exist. Then, “the cause, on the application of the losing party, shall be transferred to the court for its decision.” Our learned brethren construe this language to mean that the application can not be made to the court in banc.

The learned opinion of our brother Macfaklane does not decide whether a federal question is involved in the Duestrow case. That point is treated as wholly immaterial. The opinion proceeds on the theory that the court in banc has, in no event, authority to order a cause heard before the entire court, even though the facts bring the cause within the terms of the first part of the fourth section.

Viewing the amendment of 1890 as a whole, it seems to us, with due respect, that the construction thus placed upon it is faulty.

In our opinion a losing party (entitled under section 4 to have his cause transferred to the court in banc) may apply to that court for such a transfer and obtain it, if the division in which the cause is pending should refuse it.

The cases that reach the supreme court do.not pass entirely out of, and beyond, its jurisdiction by being-assigned to a division of the court for hearing. It is expressly declared by section 3 that “the supreme court shall assign to each division the causes and matters to be heard by it.” It is not there said (because it goes without saying and is obviously implied) that the supreme court may assign to itself, the court in banc, causes to be heard by it. And it would, in our opinion, be its duty (when cíuly requested) to assign for a hearing in the court in baric any cause in which a party becomes entitled to such- a hearing as of right, under the terms of section 4. According to the theory of the learned opinion of the majority, when a cause is once committed to a division, the supreme court.loses control of it, and from that time the division alone may determine where it shall be heard. We respectfully dissent from that view. A cause pending in a division is still pending in the supreme court, and may, at any stage, be assigned by the supreme court, for hearing in its proper place. This we consider the true spirit and intent of the amendment of 1890. To hold otherwise will introduce the possibility of the growth of two different systems of jurisprudence, administered under one roof.

If each division stands united, it may adopt its own view of the law, and there will be no possibility of action thereon by the whole court in the interest of that unity in our jurisprudence which the terms of our organic law, touching appellate courts, have for many years been aiming to secure. Const. Amenclt., 1884, sec. 6. Enough of conflict in our final decisions arises from the mere division of appellate jurisdiction; but the chance of such conflict will be greatly increased by the adop-r tion of the theory now approved by a majority of our learned brethren. The court in banc — the supreme court — should be held to be the court of final resort, and it should be held to have (at all times while the cause is pending) control of every case for the purpose of assigning it for hearing. The divisions were not intended by the constitution to be independent of each other and of the court in banc, so that the latter should be powerless to order a case heard before it, if a party is entitled to such a hearing.

The fact that the Duestrow case is a criminal one does not impair the right of transfer to the court in banc. The second division has “exclusive cognizance of all criminal cases,” but it is further declared, in the same connection (section 1), that such a criminal cause “may be transferred to the court as provided in section 4 of this amendment.” So whatever right of transfer to the court in banc is given by the fourth section, exists in criminal, as well as in civil cases.

We consider that the supreme court has power to assign the Duestrow case to the court in banc for a hearing “on the application of the losing party,” assuming that the case involves a federal question, and as such comes within the mandatory clause of section 4.

The right to such a hearing is a valuable right, for, if a rehearing in banc be had, the defendant is entitled to submit for review there the whole case, not merely the federal question. If the right to -a rehearing in banc is refused, the ruling can not be said to be harmless, since any review of the divisional judgment that might be obtained in the federal jurisdiction would be limited to a review of the federal question.

2. In the early part of the trial in the Duestrow case on the circuit, the court refused to allow defendant 48 hours within which to make his peremptory challenges of-jurors. He would have had that time under the law in force at the date of his indictment in 1894 (R. S. 1889, sec. 4204). But the court applied to the case the act of 1895 (Laws, 1895, p. 165, sec. 4204) which allows only 24 hours for such challenges in prosecutions of this kind. (The last trial began in January, 1896.) The counsel for defendant claimed, at the time of said ruling, defendant’s right to .have 48 hours for challenges, on the ground that the law reducing the time to 24 hours was a violation “of the constitution of the United States in the clause which provides that no bill of attainder or ex post facto law shall be passed.” His counsel then added: “This presents a federal question which the defendant now claims the protection of.” But the learned circuit judge overruled said objection, and defendant duly saved exception.

Defendant also objected to being tried under the 24 hours law, on other grounds, but we are not concerned with them at this time.

In defendant’s motion for new trial he repeated said objections, and claimed explicitly that the change of law (providing that the list of qualified jurors should be delivered to defendant 24 hours before the trial) was “as to this defendant and this case, an ex post facto law, and void under the operation and effect of see. 10 of art. 1 of the constitution of the United States of America, and in violation of the rights of this defendant, as a citizen of the United States, secured to him by said provision of said constitution.”

In the brief and argument filed on behalf of the defendant in the second division of the supreme court, the above point is repeated, and elaborated. The learned opinion of affirmance by that division discussed the question so raised, as appears in the second paragraph of the opinion. It was then held that the change of law referred to was “not obnoxious to-the charge of unconstitutionality, either under the national or state constitutions.”

A question is “involved” when it arises for decision. Duncan v. Missouri (1894) 152 U. S. 377.

Even when a constitutional question has been so irregularly raised as to be inseparably mingled with another issue, precluding a direct decision upon the first question, the majority of the court in banc have held that the constitutional question is sufficiently “involved” to confer appellate jurisdiction on that ground. McCarty v. O’Bryan (1896), post, p. 584; 38 S. W. Rep. 456.

The United States supreme court has lately defined an ex post facto law to be “one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the situation of the party to his disadvantage.” Duncan v. Missouri (1894) 152 U. S. 382.

Whatever our own view might be, touching the validity of the Missouri law of 1895 as applied to the Duestrow case, we can not know in advance what view might be taken of that law by the federal supreme court when applying as a test the rule above quoted. In the state of facts shown in this case, it seems to us that where the defendant has invoked, unsuccessfully, the constitution of the United States, a federal question under the judiciary act of 1789 is" fairly presented, within the rulings of the supreme court of the United States indicating what a federal question is. Kring v. Missouri (1882) 107 U. S. 221; Stanley v. Schwalby (1896) 162 U. S. 255.

Such a federal question we consider to be within the reach of the fourth section of the amendment of 1890 to the Missouri constitution. When such a question is involved, we believe that the defendant is entitled to a review of the whole case by the court in banc. Whether or not it is involved, in a given state of facts, is a question of law (sometimes of difficulty), which should be decided by the court in banc when properly invoked to decide it.

The merits of the federal question are not now before this 'court, and we regard them as foreign to the present discussion.

We regret being obliged to differ from our learned colleagues. But the importance of the case appears to demand a statement of our position, and of the reasons that have led us thereto. With all respect due our learned brethren, we find ourselves unable to concur in their judgment denying the motion for a transfer to the court in banc.

Judge Robinson concurs in this opinion.