The opinion of the court was delivered by
Millkr, J.
The accused, convicted of burning a vacant dwelling, punishable with imprisonment at hard labor, takes this appeal from the sentence.
lie assigns as error patent- on the record, that the offence of which he was convicted, was committed prior to the adoption of the present Constitution, authorizing1 convictions on the concurrence of nine of the jury, that the constitutional provision in this respect as applied to offences before the Constitution was adopted, is ex post facto legislation, and hence the sentence based on the verdict concurred in by nine only of the jury that tried him cannot stand. The argument is that when the offence was committed there could be no conviction without the concurrence of the jury of twelve, and that the Constitution of the State in dispensing with that unanimity, substituting1 the concurrence of nine only of the jury, violates the article of the Constitution of the United States prohibiting ex post facto legislation by the State. If the change made by the Constitution in respect to convictions for crime, is to be deemed ex post facto in character when sought to be applied to the trial for offences committed prior to the adoption of the Constitution of the State, it is manifest the assignment must prevail. Revised Statutes, Ss. 843, 976; Constitution of’ the State, Article 116; Constitution of the United States, Article 3, S. 9, section 3.
The definitions of the ex post facto law, as it is often found in the text books and decisions, that it is legislation constituting that a crime not an offence when the act was done; or that increases the punishment beyond that affixed to the act when committed; or that changes ■ the rule of evidence by requiring a less degree of proof to acquit than necessary by the law when the offence occurred, do not exclude other" [171] illustrations of ex post facto laws. Cooley’s Constitutional Limitations, IXtli Chapter, p. 38. In the recent exposition of the ex post facto law by the Supreme Court of the United States the question was whether a conviction for crime obtained in Utah based on the verdict of eight jurors, that being- the number provided by the Constitution of that State, could be sustained in view of the fact that the offence was committed before the adoption of the Constitution and while Utah was a"territory. In defining the ex post facto law the court thus expressed itself: “The crime when committed was punishable by the territory of Utah, proceeding in all its legislation in subordination to the authority of the United States. The court below substituted as the basis of its sentence the verdict of eight jurors in place of the unanimous verdict of twelve required to convict when the of-fence was committed. It cannot, therefore, be said that the Constitution of Utah did not deprive the accused of a substantial right, and did not materially alter the situation of the accused to his disadvantage.” In another part of the opinion the court gives the approved definition of the ex post facto law thus: “Any statute which in its relation to the offence or its consequences, alters the situation of the accused to his disadvantage,” and the court held that the provision under discussion in the Constitution of Utah was repugnant to the-prohibition of ex post facto legislation. Thompson vs. Utah, 170 U. S. p. 343.
The change made by the Constitution of Utah was the provision of’ a j ury of eight, in courts of general jurisdiction except in capital cases, but required unanimity of the jury in rendering their verdict. Our Constitution, in so far as it bears on this controversy, provides for a jury of twelve in prosecutions for offences necessarily punishable with imprisonment at hard labor, but authorizes the verdict by nine concurring- jurors. In the Utah case the verdict was found by the eight composing- the jury. In this case the verdict found is by eleven jurors. In each case the conviction is by less than what the Supreme-Court of the United States terms the “historical” Constitutional jury of twelve.
The distinction between legislative changes from time to time in methods of proceedure and ex post facto laws, is distinctly recognized’ in text books and decisions. Cooley’s Constitutional Limitations, p. 264, Ch. 9th. On our first examination of this question we reached the conclusion that, our recent Constitution, introducing the concur[172] renee of nine jurors, to convict, instead of the unanimous jury, kept within the limits of legislative control over legal procedure. State ex rel Sherburne vs. Judge, 50th Ann., not yet reported; State vs. Caldwell, 50th Ann. 670. Our predecessors held a like view in State vs. Carter, 33rd, Ann. p. 1214. When our decisions were made we were not aware of the recent decision of the Supreme Court of the United States.
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The opinion of the court was delivered by
Millkr, J.
The accused, convicted of burning a vacant dwelling, punishable with imprisonment at hard labor, takes this appeal from the sentence.
lie assigns as error patent- on the record, that the offence of which he was convicted, was committed prior to the adoption of the present Constitution, authorizing1 convictions on the concurrence of nine of the jury, that the constitutional provision in this respect as applied to offences before the Constitution was adopted, is ex post facto legislation, and hence the sentence based on the verdict concurred in by nine only of the jury that tried him cannot stand. The argument is that when the offence was committed there could be no conviction without the concurrence of the jury of twelve, and that the Constitution of the State in dispensing with that unanimity, substituting1 the concurrence of nine only of the jury, violates the article of the Constitution of the United States prohibiting ex post facto legislation by the State. If the change made by the Constitution in respect to convictions for crime, is to be deemed ex post facto in character when sought to be applied to the trial for offences committed prior to the adoption of the Constitution of the State, it is manifest the assignment must prevail. Revised Statutes, Ss. 843, 976; Constitution of’ the State, Article 116; Constitution of the United States, Article 3, S. 9, section 3.
The definitions of the ex post facto law, as it is often found in the text books and decisions, that it is legislation constituting that a crime not an offence when the act was done; or that increases the punishment beyond that affixed to the act when committed; or that changes ■ the rule of evidence by requiring a less degree of proof to acquit than necessary by the law when the offence occurred, do not exclude other" [171] illustrations of ex post facto laws. Cooley’s Constitutional Limitations, IXtli Chapter, p. 38. In the recent exposition of the ex post facto law by the Supreme Court of the United States the question was whether a conviction for crime obtained in Utah based on the verdict of eight jurors, that being- the number provided by the Constitution of that State, could be sustained in view of the fact that the offence was committed before the adoption of the Constitution and while Utah was a"territory. In defining the ex post facto law the court thus expressed itself: “The crime when committed was punishable by the territory of Utah, proceeding in all its legislation in subordination to the authority of the United States. The court below substituted as the basis of its sentence the verdict of eight jurors in place of the unanimous verdict of twelve required to convict when the of-fence was committed. It cannot, therefore, be said that the Constitution of Utah did not deprive the accused of a substantial right, and did not materially alter the situation of the accused to his disadvantage.” In another part of the opinion the court gives the approved definition of the ex post facto law thus: “Any statute which in its relation to the offence or its consequences, alters the situation of the accused to his disadvantage,” and the court held that the provision under discussion in the Constitution of Utah was repugnant to the-prohibition of ex post facto legislation. Thompson vs. Utah, 170 U. S. p. 343.
The change made by the Constitution of Utah was the provision of’ a j ury of eight, in courts of general jurisdiction except in capital cases, but required unanimity of the jury in rendering their verdict. Our Constitution, in so far as it bears on this controversy, provides for a jury of twelve in prosecutions for offences necessarily punishable with imprisonment at hard labor, but authorizes the verdict by nine concurring- jurors. In the Utah case the verdict was found by the eight composing- the jury. In this case the verdict found is by eleven jurors. In each case the conviction is by less than what the Supreme-Court of the United States terms the “historical” Constitutional jury of twelve.
The distinction between legislative changes from time to time in methods of proceedure and ex post facto laws, is distinctly recognized’ in text books and decisions. Cooley’s Constitutional Limitations, p. 264, Ch. 9th. On our first examination of this question we reached the conclusion that, our recent Constitution, introducing the concur[172] renee of nine jurors, to convict, instead of the unanimous jury, kept within the limits of legislative control over legal procedure. State ex rel Sherburne vs. Judge, 50th Ann., not yet reported; State vs. Caldwell, 50th Ann. 670. Our predecessors held a like view in State vs. Carter, 33rd, Ann. p. 1214. When our decisions were made we were not aware of the recent decision of the Supreme Court of the United States.
We have had an elaborate argument on behalf of the State to maintain our own decisions, and in that connection it is urged that on the question presented, the decisions of the Supreme Court of the United States are not binding on this court. We should certainly follow our own decisions, if that of the Supreme Court of the United States did not, in our view, exert controlling influence. The argument supposes a distinction between the question in this case and that determined in the Utah case. In that case the offence was committed when Utah was a territory, and the trial occurred after the territory became a State. The decision maintained that the provisions of the Constitution of the United States guaranteeing the trial by jury, applied to prosecutions for crime in the territories as well as in the states, and held that the trial thus secured was by the “historical” jury of twelve. The Constitution of Utah, under which the accused was tried, in authorizing the conviction by a jury of eight, in the view of the court, deprived the accused of a substantial right, and hence was ex post facto legislation prohibited by the Constitution. Article 3rd S. 3, 6th Amendment; Thompson vs. Utah, 70 U. S. pp. 344-350. The same course of reasoning applies with equal, if not greater force in this case, in which both the offence and the trial occur in the State of Louisiana, subordinated in all its legislation to the provisions of Constitution of the United States, guaranteeing the right of trial by jury construed in Thompson vs. Utah, 170th U. S. 344, and it may be added, sub■ordinated to that other limitation on the legislative power, both State and Federal, that no State shall pass any ex post facto law. Articles 1st, 9th and 10th. It is the conclusion of the United States Supreme Court that the substitution of the jury of eight for the jury of twelve is ex post facto, and we cannot maintain the view of our own in this respect, different from the deliberate judgment of the highest tribunal with the jurisdiction to review and reverse the decision of this court denying to the accused the right in the view of that tribunal, secured to him by the Constitution of the United States. Any weight we [173] might attach to stare decisis would, avail nothing in a case presenting to the Supreme Court of the United States the denial of a right of the nature under discussion. That court would feel itself bound to enforce the protection of the federal Constitution, and the decision in the Utah case gives us the interpretation of that tribunal. Revised. Statutes of the United States, S. 709. The argument supposes, too,, that the provision in the Utah Constitution construed in 170th U. S.,. differs from that of our Constitution under discussion. The difference is supposed to be in the fact that under the Constitution of Utah a jury of eight only was provided, while our Constitution provides for the jury of twelve, but authorizes the verdict by the concurrence of nine. It is claimed this gives the accused the chance of an acquittal by nine. This chance of acquittal under the exposition of the Supreme Court oí the United States, cannot be deemed to answer the requirement there can be no conviction at all, unless by the verdict of twelve, the only jury recognized in determining the question in this case. All the other aspects discussed in the trial and argument for the State had our attention. We think the decision of the Supreme Court of the United States makes it imperative to hold that Article 116 of the Constitution cannot be applied to offences committed prior to the adoption of that instrument.
It is therefore ordered, adjudged and decreed that the sentence of the lower court be reversed and set aside and the accused held for another trial according to the laws in force when the offence is charged to have been committed and to abide the result of that trial.