Kring v. State of Missouri/Dissent Matthews

MATTHEWS, J., dissenting.

The chief justice, Mr. Justice BRADLEY, Mr. Justice GRAY, and myself are unable to concur in the judgment and opinion of the court in this case, and the importance of the question determined constrains us to state the grounds of our dissent. The material facts are these:

The plaintiff in error, at March term, 1875, of the St. Louis     criminal court, was indicted for murder in the first degree. On his arraignment he pleaded 'not guilty.' At the November     term of the same year a trial was had, which resulted in a      verdict of guilty of murder in the first degree, and a      sentence of death. That judgment was reversed on appeal, and     twice subsequently there were mistrials. On November 12,     1879, the defendant, by consent of the circuit attorney and      leave of the court, withdrew his plea of not guilty and      entered a plea of guilty of murder in the second degree. He     was thereupon sentenced to imprisonment in the penitentiary      for a term of 25 years. The prisoner then filed a motion to     set aside this judgment and sentence, and to allow him to      withdraw the plea of guilty of murder in the second degree,      and to permit him 'to have his original plea of not guilty      entered to record, to the end that he may have a trial upon      the merits of his case before a jury.' In support of this      motion reasons were assigned, in substance, that he had      withdrawn his original plea of not guilty and entered the      plea of guilty of murder in the second degree, upon the faith      of an understanding previously had with the circuit attorney,      representing the prosecution, that if he would do so the      sentence should not exceed 10 years in the penitentiary,      which * understanding was violated by the sentence complained of. The court     overruled the motion, but upon appeal the judgment was      reversed, on the ground alleged by the prisoner that he had      been misled, and the cause was remanded for further      proceedings. On receipt of this mandate, the trial court, the     prisoner refusing to withdraw his plea of guilty of murder in      the second degree and to enter a plea of not guilty,      entertained the motion previously made by him, for refusing      to grant which the judgment had thus been reversed, and      granted it, setting aside the plea of guilty, and, the      prisoner standing mute, ordered a plea of not guilty to be      entered. On this plea a trial was had at October term, 1881,     when the prisoner was found guilty of murder in the first      degree and again sentenced to death. An appeal was prosecuted     from this judgment, which, however, was affirmed by the      supreme court of Missouri, and is brought here for      examination by the present writ of error, on the ground that      it has been rendered in violation of a right secured to the      plaintiff in error by the constitution of the United States.

The right which it is alleged has been violated is supposed to arise in this way. At the time of the commission of the offense, in 1875, it was well established as the law of Missouri, by the decisions of the supreme court of the state, that 'when a person is indicted for murder in the first degree, and is put upon his trial and convicted of murder in the second degree, and a new trial is ordered at his instance, he cannot legally be put upon his trial again for the charge of murder in the first degree; he can be put upon his trial only upon the charge of murder in the second degree.' State v. Ross, 29 Mo. 32; State v. Smith, 53 Mo. 139. And it is not denied that a plea of guilty of murder in the second degree, accepted by the state, would have been at that time equally an acquittal of the charge of murder in the first degree, having the same force as to future trials as a conviction of murder in the second degree, although the judgment should be reversed on the application of the prisoner.

On November 30, 1875, the state of Missouri adopted a new constitution, which contained (section 23, art. 2) the provision that 'if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law.'

In the case of State v. Sims, 71 Mo. 538, it was decided that this provision overthrows the rule laid down in the case of State v. Ross, ubi supra, and was 'equivalent to declaring that when such judgment is reversed for error at law, the trial had is to be regarded as a mistrial, and that the cause, when remanded, is put on the same footing as a new trial, as if the cause had been submitted to a jury, resulting in a mistrial by the discharge of the jury in consequence of their inability to agree on a verdict.'

The rule thus introduced by the constitution of 1875 was the one applied in the trial of the prisoner, instead of that previously in force; and the contention is that to apply it in a case such as the present, where the alleged offense was committed prior to the adoption of the new constitution, is to give it operation as an ex post facto law, in violation of the prohibition of the constitution of the United States.

In examining this proposition it must constantly be borne in mind that the plea of guilty of murder in the second degree, the legal effect of which, when admitted, is the precise subject of the question, was entered long after the new rule established by the constitution of Missouri took effect; that the prisoner himself moved to set it aside, and for leave to renew his plea of not guilty, on the ground that he had been misled into making his plea of guilty under circumstances that would make it operate as a fraud upon his rights, if it were permitted to stand; and that, because the court denied this motion, he made and prosecuted his appeal for a reversal of its judgment, in full view of the rule, then in force, of the application of which he now complains, which expressly declared what should be the effect of such a reversal.

The classification of ex post facto laws first made by Mr. Justice CHASE, in Calder v. Bull, 3 Dall. 386-390, seems to have been generally accepted. It is as follows:

'(1) Every law that makes an action done before the passing     of the law, and which was innocent when done, criminal, and      punishes such action; (2) every law that aggravates a crime      or makes it greater than it was when committed; (3) every law      that changes the punishment, and inflicts a greater punishment      than the law annexed to the crime when committed; (4) every      law that alters the legal rules of evidence, and receives      less or different testimony than the law required at the time      of the commission of the offense, in order to convict the      offender.'

This definition was the basis of the opinion of the court in the cases of Cummings v. State, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, and was expressly relied on in the opinion of the dissenting judges, which says: 'This exposition of the nature of ex post facto laws has never been benied, nor has any court or any commentator on the constitution added to the classes of laws here set forth, as coming within that clause of the organic law.' 4 Wall. 391.

Now, under which of these heads does the controverted rule of the Missouri constitution fall? It cannot be contended that it is embraced in either of the first three. If in any, it must be covered by the fourth. But what rule of evidence, existing at the time of the commission of the offense, is altered to the disadvantage of the prisoner? The answer made is this: that, at that time, an accepted plea of guilty of murder in the second degree was conclusive proof that the prisoner was not guilty of murder in the first degree, and that it was abrogated so as to deprive the prisoner of the benefit of it. But while that rule was in force the prisoner had no such evidence of which he could avail himself. How, then, has he been deprived of any benefit from it? He had not, during the period while the rule was in force, entered any plea of guilty of murder in the second degree, and no such plea had been admitted by the state. All that can be said is that if, while the rule was in force, he had entered such a plea with the consent of the state, its legal effect would have been as claimed, and by its change he has lost what advantage he would have had in such a contingency. But it does not follow that such a contingency would have happened. It was not within the power of the prisoner to bring it about, for it required the concurrence and consent of the state; and it cannot be assumed that, under such a rule and enough to say that, under a ruling of the court, a party might have enough to say that, under a ruling of the court, a party might have lost the benefit of certain evidence, if such evidence had existed. To predicate error in such a case, it must be shown that the party had evidence of which, in fact, he has been illegally deprived. Such a case would have been presented here, if the plea of guilty of murder in the second degree had been entered and accepted before the constitution of 1875 took effect, and while the old rule was in force. Then the law would have taken effect upon the transaction between the prisoner and the prosecution in the acceptance of his plea; the status of the prisoner would have been fixed and declared; he would have stood acquitted of record of the charge of murder in the first degree; and the new rule would have been an ex post facto law if it had made him liable to conviction and punishment for an offense of which by law he had been declared to be innocent.

But, in the circumstances of the present case, the evidence, of which it is said the prisoner has been deprived, came into being after the law had been changed. It was evidence created by the law itself, for it consists simply in a technical inference; and the law in force when it was created necessarily determines its quality and effect. That law did not operate upon the offense to change its character; nor upon its punishment to aggravate it; nor upon the evidence which, according to the law in force at the time of its commission, was competent to prove or disprove it. It operated upon a transaction between the prisoner and the prosecution, which might or might not have taken place; which could not take place without mutual consent; and when it did take place that consent must be supposed to have been given by both with reference to the law as it then existed, and not with reference to a law which had then been repealed.

It is the essential characteristic of an ex post facto law that it should operate retrospectively, so as to change the law in respect to an act or transaction already complete and past. Such is not the effect of the rule of the constitution of Missouri now in question. As has been shown, it does not, in any particular, affect the crime charged, either in its definition, punishment, or proof. It simply declares what shall be the legal effect, in the future, of acts and transactions thereafter taking place. It enacts that any future erroneous and unlawful conviction for a less offense, thereafter reversed on the application of the accused, shall be held for naught, to all intents and purposes, and shall not, after such reversal, operate as a technical acquittal of any higher grade of crime, for which there might have been a conviction under the same indictment. It imposes upon the prisoner no penalty or disability. It cannot affect the case of any individual, except upon his own request, for he must take the first step in its application. When he pleads guilty of murder in the second degree, he knows that its acceptance cannot operate as an acquittal of the higher offense. When he asks to have the conviction reversed, he understands that if his application is granted, the judgment must be set aside with the same effect as if it had never been rendered. It does not touch the substance or merits of his defense, and is in itself a sensible and just rule in criminal procedure.

And, 'so far as mere modes of precedure are concerned,' says     Judge COOLEY, (Const. Lim. 272,) 'a party has no more right      in a criminal than in a civil action to insist that his case      shall be disposed of under the law in force when the act to      be investigated is charged to have taken place. Remedies must     always be under the control of the legislature, and it would      create endless confusion in legal proceedings if every case      was to be conducted only in accordance with the rules of      practice, and heard only by the courts in existence when its      facts arose. The legislature may abolish courts and create     new ones, and it may prescribe altogether different modes of      procedure in its discretion, though it cannot lawfully, we      think, in so doing, dispense with any of those substantial      protections with which the existing law surrounds the person      accused of crime. Statutes giving the government additional     challenges, and others which authorized the amendment of      indictments, have been sustained and applied to past      transactions, as doubtless would be any similar statute      calculated merely to improve the remedy, and in its operation      working no injustice to the defendant and depriving him of no      substantial right.'

Accordingly it was held by this court, in Gut v. State, 9 Wall. 35, in the language of Mr. Justice FIELD, delivering its opinion, that 'a law changing the place of trial from one county to another county in the same district, or even to a different district from that in which the offense was committed or the indictment found, is not an ex post facto law, though passed subsequent to the commission of the offense or the finding of the indictment.' And in the case of Ex parte McCardle, 7 Wall. 506, it was the unanimous decision of the court that it was competent for congress, in a case affecting personal liberty, to deprive the complaining party of the benefit of an appeal from the judgment of an inferior court, after his appeal had taken effect and while it was pending. It would have been equally competent for the constitution of Missouri to have declared that no appeal or writ of error should thereafter be allowed to reverse the judgment of the court of original jurisdiction in any pending criminal cause, which certainly would be giving a different, because irreversible, effect to that judgment from what such judgments would have had under the law in force when the offense was committed. If it be true, in the logic of the law, as it is in all its other applications, that the greater includes the less, then it was competent for that constitution to provide that, as to all judgments in criminal cases thereafter rendered, which should be reversed for error, on the appeal of the defendant, the effect of the reversal should be such as not to be a bar to a subsequent conviction for any crime described in the indictment; for that would have been to say, not that there shall be no appeal at all, but that if an appeal is taken its effect shall only be such as is prescribed in the law allowing it.

In Com. v. Holley, 3 Gray, 458, SHAW, C. J., said:

'The object of the declaration of rights was to secure     substantial privileges and benefits to parties criminally      charged; not to require particular forms, except where they      are necessary to the purposes of justice and fair dealing      towards persons accused, so as to insure a full and fair      trial.'

And in Com. v. Hall, 97 Mass. 570, the court, speaking of a statutory provision authorizing the amendment of indictments, so as to allege a former conviction, the effect of which was to increase the penalty, said:

'We entertain no doubt of the constitutionality of this     section, which promotes the ends of justice by taking away a      purely technical objection, while it leaves the defendant fully and fairly informed of the      nature of the charge against him, and affords him ample      opportunity for interposing every meritorious defense. Technical and formal objections of this nature are not     constitutional rights.'

These observations, it is not necessary to point out, are entirely applicable to the present argument.

Still stronger, and more to the point, is what was said by SHAW, C. J., in Jacquins v. Com. 9 Cush. 279, where it was held that a statute authorizing the supreme judicial court, on a writ of error, on account of error in the sentence, to render such judgment therein as should have been rendered, applied to past judgments, and was not, on that account, an ex post facto law. That eminent judge said:

'It was competent for the legislature to take away writs of     error altogether in cases where the irregularities are formal      and technical only, and to provide that no judgment should be      reversed for such cause. It is more favorable to the party to     provide that he may come into court upon the terms allowed by      this statute than to exclude him altogether. This act     operates like the act of limitations. Suppose an act was     passed that no writ of error should be taken out after the      lapse of a certain period. It is contended that such an act     would be unconstitutional, on the ground that the right of      the convict to have his sentence reversed upon certain      conditions had once vested. But this argument overlooks     entirely the well-settled distinction between rights and      remedies.'

Precisely the same distinction between laws ex post facto and those which merely affect the remedy, and are, therefore, applicable to the case of an offense previously committed, is well illustrated by the case of Ratzky v. People, 29 N. Y. 124. There the prisoner had been convicted of murder in the first degree; the offense was committed when the act of 1860 was is force, which prescribed the mode of punishment; he was sentenced, however, in accordance with the terms of an act passed in 1862, subsequently to the commission of the offense, and which prescribed a different mode of punishment. On this account the judgment was held to be erroneous and was reversed, on the ground that the act of 1862, applied to offenses previously committed, was ex post facto. But at the time of the commission of the offense, in 1861, it was the well-settled law of New York, as decided in Shepherd v. People, 25 N. Y. 406, that when a wrong judgment had been pronounced, although the trial and conviction were regular, the prisoner could not, on the reversal of judgment, be subject to another trial, but would be entitled to his discharge. But on April 24, 1863, after the prisoner had been tried and convicted, but before judgment and sentence were pronounced, an act of the legislature took effect, which provided that the appellate court should have power, upon any writ of error, when it should appear that the conviction had been legal and regular, to remit the record to the court in which such conviction had been had, to pass such sentence thereon as the appellate court should direct. But for the authority conferred by this act, the court of appeals stated that it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment, or remit the record to the oyer and terminer to give such judgment; but, on the contrary, would have been obliged to have discharged him, the law not authorizing another trial. Nevertheless, the court of appeals gave effect to the act of 1863, reversed the judgment, and sent the record down with directions to sentence the prisoner to death, in accordance with the provisions of the act of 1860, holding that the act of 1863 was not an ex post facto law. And yet it deprived the prisoner of the benefit of a rule of law, in force at the time the offense was committed, viz., that if he should be erroneously sentenced, and the judgment should be reversed, he would be entitled to be discharged and forever after protected against further prosecution for the same offense, as well as against any second judgment upon the same verdict. This decision deserves particular consideration, for it involves the very question under discussion. At the time of the commission of his offense, and at the time of his trial and conviction, a rule of law in New York had been well established that upon a reversal of judgment in a capital case, for error in the sentence, the prisoner was entitled to be discharged, and his former conviction, notwithstanding the reversal, was a conclusive defense upon any subsequent trial for the same offense. After trial and conviction a statute was passed which abrogated that rule and declared that a subsequent reversal of judgment for error merely in the sentence should not have that effect, but that, even without a new trial, a new judgment might be entered upon the verdict. This gave to the verdict and to the subsequent proceeding an effect entirely different from what they would have had under the law as it stood at the time of the commission of the offense, and deprived the prisoner of the advantage of the rule then in force. After that statute took effect he prosecuted a writ of error and reversed the judgment for error in the sentence, and it was held that the effect of that reversal was determined by the law in force when it was rendered, and not by thelaw in U 'It would follow from these considerations, and the authority of the case of People v. Shepherd, 25 N. Y. 406, that a wrong judgment having been pronounced, although the trial and conviction were regular, this prisoner could not be subjected to another trial and would be entitled to his discharge. That would unquestionably be so but for the act of April 24, 1863. * *  * In the present case that act became operative before the judgment and sentence were pronounced and given, and before the writ of error was prosecuted to this court. It was, therefore, in force when the writ of error in this case was prosecuted, and its provisions are applicable to the duty imposed upon this tribunal by virtue of that proceeding. * *  * But for the authority conferred upon this court by that statute it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or remit the record to the oyer and terminer to give such judgment.'

'The remaining question is, whether the judgment should be     reversed and the prisoner discharged, according to the former      rule, or the record be remitted to the oyer and terminer to      pass a legal sentence upon the conviction. This latter course     is now authorized by statute. Laws 1863, c. 226, p. 406. The     conviction was legal and the sentence only was erroneous. The     only question is, whether the act, having been passed after      the conviction, though before judgment was given in the      supreme court, could be applied to the case. I am of opinion that it can be applied. The forms of     judicial proceedings are under control of the legislature.'

And the court accordingly, instead of ordering the prisoner to be discharged, according to the rule in force at the time the offense was committed, and even at the time of his trial and conviction, directed the record to be remitted to the court of oyer and terminer with instructions to sentence him to suffer death for the crime of which he had been convicted.

The counterpart and complement of the decision in Ratzky's Case are found in Hartung v. People. There the prisoner had been convicted of murder and sentenced to death; but at the time the judgment was rendered the law in force at the time of the commission of the offense providing for its punishment had been repealed, and the repealing act substituted a different punishment. It was on this account adjudged to be an ex post facto law, and void, and the judgment was reversed. 22 N. Y. 95. Subsequently the repealing act was itself repealed, and the former act in force when the offense was committed was restored. Then the prisoner was again tried, having pleaded a former conviction, but was found guilty, and adjudged to suffer death in accordance with the law existing at the time the offense was committed. This judgment was thereupon reversed, and the prisoner ordered to be discharged, on the ground that the act restoring the law as it stood when the offense was committed was an ex post facto law, because at the time it was passed the prisoner had been adjudged to be legally free from punishment of any kind on account of her offense. 26 N. Y. 167. The very point of the decision was that while it was competent for the legislature to repeal the repealing act so that it could not thereafter be availed of, it could not destroy the effect of a judgment actually pronounced while that act was in force. It is manifest that if in that case the prisoner had not been tried at all until after the law had been thus twice changed, she could not have claimed to have had the vested interest in the first repealing act which was allowed to her in the judgment actually rendered when it was in force. It was because the subsequent law, if applied, would have changed the legal effect of that judgment, that it was adjudged to be an ex post facto law.

It was precisely upon this principle that the supreme court of North Carolina proceeded in the case of State v. Keith, 63 N. C. 140. There the prisoner, in custody on a charge of murder, moved for a discharge, on the ground that his offense was within the provisions of the amnesty act of 1866-67. This was admitted to be the case, but the motion was opposed on the ground that the amnesty act had been repealed. It was held that the effect of the pardon was, so far as the state was concerned, to destroy and entirely efface the previous offense, as if it had never been committed; and that to give to the repeal of the amnesty act the effect, as claimed, of reviving the offense, would make it an ex post facto law, making criminal that which, when it took effect, was not so, and taking from the prisoner his vested right to immunity. But suppose in that case the provisions of the amnesty act had been conditional and not absolute, so that no one could plead its pardon unless he had taken certain formal preliminary steps to obtain the benefit of its terms, and that before the prisoner had done so the act had been repealed, could it be claimed that in that event he had obtained a vested right to immunity, and that its repeal operated as an ex post facto law? Clearly not. And, in reference to this case, it is also to be observed that the fact, the legal character of which was changed by the subsequent law, was the fact of pardon, and not a fact which existed at the time of the commission of the offense. The repealing act was ex post facto, because it had the effect to change the legal character of the facts as they existed at the time of its passage.

In State v. Arlin, 39 N. H. 179, a prisoner was indicted for a robbery, which, at the time of its commission, was punishable by imprisonment for life, but by the same law he was entitled to have counsel assigned him by the government, process to compel the attendance of witnesses, and other similar privileges. A subsequent law mitigated the severity of the punishment and repealed the act giving these privileges. It was held that the act was not ex post facto, because it changed the punishment to the advantage of the prisoner, and that he was not entitled to the incidental benefits secured by the law in force when the offense was committed. The court remarked that by committing the offense the prisoner had not acquired a vested right to enjoy the privileges to which he would have been entitled if tried under the law subjecting him to imprisonment for life.

The rule of law in Missouri, the benefit of which is claimed for the prisoner in this proceeding, notwithstanding its repeal by the constitution of the state before it could have been applied in his case, was established, not by statute, but by a series of judicial decisions of the supreme court of the state. Those decisions might at any time have been reversed by the same tribunal, and a new rule introduced, such as that actually declared by the constitution. In that event, could it be said, with any plausibility, that the latter decisions, reversing the law as previously understood, could not be applied to all subsequent proceedings in cases where, upon a plea of guilty of murder in the second degree thereafter entered and accepted, an erroneous judgment thereon had been reversed, notwithstanding, when the offense was committed, the prior decisions had been in force? Would the new rule, as introduced and applied by the later judicial decisions, be in violation of the prohibition of the constitution of the United States against ex post facto laws? But the constitution of Missouri has done no more than this. The nature and operation of the rule are not affected by any peculiarity in the authority which establishes it. If it is not objectionable as an ex post facto law, when introduced by judicial decision, it is because it is not so in its nature; and, if not, it does not become so when introduced by a legislative declaration.

There are doubtless many matters of mere procedure which are of vital consequence; but in respect to them the power of congress, as to crimes against the United States, is restrained by positive and specific limitations, carefully inserted in the organic law, prohibiting unreasonable searches and seizures, and general warrants, providing that no one shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the military service; that no person shall, for the same offense, be twice put in jeopardy of life or limb, nor be compelled to testify against himself; that every accused person shall be secured in the right to a public trial by an impartial jury in a previously ascertained district, in which the alleged offense is charged to have been committed; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. But these are limitations upon the legislative power of the United States, whether prospective or retrospective, and not upon that of the states; and although the constitutions of all the states, probably, have equivalent guaranties of individual rights, the violation of none of them by a state tribunal, under state legislation, could present a case for the exercise of supervisory jurisdiction by this court. The prohibition against bills of attainder is the only one of this class which applies to both the government of the United States and those of the states; and while a bill of attainder may be an ex post facto law, it is not necessarily so, as it may be merely a matter of procedure,-a trial by a legislative instead of a judicial body.

But, in addition to these matters of procedure, which are specially protected against legislative change, either for the past or the future, there may be others, in which changes with a retrospective effect are forbidden by the prohibition against ex post facto laws. Such, we have already seen, would be laws which authorize conviction upon less evidence than was required at the time of the commission of the offense, or which altered, to the disadvantage of the accused, the nature and quantity of proof at that time required to substantiate a legal defense; or which, in other words, gave to the circumstances which constituted and attended the act, a legal signification more injurious to the accused than was attached to them by the law existing at the time of the transaction.

It is doubtless quite true that it is difficult to draw the line in particular cases beyond which legislative power over remedies and procedure cannot pass without touching upon the substantial rights of the parties affected, as it is impossible to fix that boundary by any general words. The same difficulty is encountered, as the same principle applies, in determining, in civil cases, how far the legislature may modify the remedy without impairing or enlarging the obligation of contracts. Every case must be decided upon its own circumstances, as the question continually arises and requires an answer. But it is a familiar principle that, before rights derived under public laws have become vested in particular individuals, the state, for its own convenience and the public good, may amend or repeal the law without just cause of complaint. 'The power that authorizes or proposes to give,' said Mr. Justice WOODBURY in Merrill v. Sherburne, 1 N. H. 213, 'may always revoke before an interest is perfected in the donee.' Accordingly, the heir apparent loses no legal right, if, before descent cast, the law of descents is changed so as to shift the inheritance to another, however his expectations may be disappointed. And while it would be a violation of the constitutional maxim which forbids retrospective legislation inconsistent with vested rights, to deprive, by a repeal of statutes of limitation, a defendant of a defense which had become perfect while they were in force; yet if, before the bar had become complete, he should be deprived of an expected defense by an extension of time in which suit might be brought, he would have no just cause to object that he was compelled to meet the case of his adversary upon its merits.

In respect to criminal offenses it is undoubtedly a maxim of natural justice, embodied in constitutional provisions, that the quality and consequences of an act shall be determined by the law in force when it is committed, and of which, therefore, the accused may be presumed to have knowledge, so that the definition of the offense, the character and degree of its punishment, and the amount and kind of evidence necessary to prove it, cannot be changed to the disadvantage of the party charged ex post facto. And this equally applies to, because it includes, the matters which, existing at the time and constituting part of the transaction, affect its character, and thus form grounds of mitigation or defense; for the accused is entitled to the benefit of all the circumstances that attended his conduct, according to their legal significance, as determined at the time. All these are incidents that belong to the substance of the thing charged as a crime, and therefore come within the saving which preserves the legal character of the principal fact. But matters of possible defense, which accrue under provisions of positive law, which are arbitrary and technical, introduced for public convenience or from motives of policy, which do not affect the substance of the accusation or defense, and form no part of the res gestae, are continually subject to the legislative will, unless, in the mean time, by an actual application to the particular case, the legal condition of the accused has been actually changed. His right to maintain that status, when it has become once vested, is beyond the reach of subsequent law. The present, as we have seen, is not such a case. The substance of the prisoner's defense, upon the merits, has not been touched; no vested right under the law had wrought a result upon his legal condition before its repeal. He is, therefore, in no position to invoke the constitutional prohibition which is, by the judgment of this court, now interposed between him and the crime of which he has been convicted.

In our opinion the judgment of the supreme court of Missouri should be affirmed.