State v. Moore

42 N.J.L. 208

Opinion

Beasley, Chief Justice.

By the one hundred and thirteenth section of the criminal procedure act it is provided, among other things, that no person shall “ be prosecuted, tried or punished for any offence not punishable with death, unless the indictment shall be found within two years from the time of the committing of the offence, or incurring of the fine or forfeiture aforesaid.” On March 14th, 1879, an act was passed changing this period of limitation from two years to five.

At the trial of this case the counsel of the defendant objected to the reception of any evidence showing the commission of any criminal act of his client at a date prior to the period of two years before March 14th, 1879, and the objection having been overruled exception was taken. On the part of the state it was then shown that various acts of embezzlement had been committed by the defendant prior to two years before the above-mentioned date, and consequently at a time which was more than two years before the finding of the present indictment. It will be, therefore, observed that the defendant may have been convicted for an offence the prosecution of which had become barred by the original act of limitations first above cited. The question, therefore, now to be consid ered by this court, on this application for its advisory opinion, is, whether this right to prosecute, thus barred by lapse of time, could be resuscitated by the modifying act passed in the-year 1879.

The principal position taken against the validity of this-statute which removes the bar of the limitation in question is,, that such law is an ex post facto law, and is therefore prohibited by both the federal and state constitutions.

But does this act bear the legal character thus imputed to it? It is impossible intelligently to settle this question unless we first ascertain with entire clearness, what is an ex post factolaw.

These words are technical, and have, and always have had,, a fixed and definite meaning in their application to criminal law. In the same sense they were used before their introduction into the federal constitution, by Blackstone and other English writers; by Hamilton in The Federalist, and in the resolutions passed by several of the state conventions. Nor do I find that since such occasions, when subjected to judicial exposition, they have had any other signification ascribed to-them. The established import of the phrase ex post facto law, in the connection in question, is, a law that originates a punishment, or an increase of punishment, for an act already done. It was a legislative power to convert that which was innocent into that which is criminal, and after the transaction to adjudge its culpability and punishment. Referring to the injustice of enforcing laws before their proper promulgation, Blackstone says, “ There is still a more unreasonable method than this, which is called making of laws ex post facto: when an action (indifferent in itself) is committed, the legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it.” The case of Calder v. Bull, 3 Dall. 386, is the leading case upon the subject, and it announces the doctrine, and which has been since uniformly confirmed, that the expression ex post facto law applies only to criminal laws, and that the phrase as used in the federal constitution declares that the state legisla tures shall not by statute, “ inflict a punishment for any act which was innocent at the time it was committed, nor increase the degree of punishment previously denounced for any specified ■offence.” Before leaving this interesting case it is proper to remark, however, that Judge Chase, in his full and able discussion •of the subject, extends the definition of an ex post facto law so as to embrace not only those creating or increasing the punishment, but also “ every law that alters the legal rules of evi•dence, and receives less or different testimony than the law ■required at the time of the commission of the offence, in order to convict the offender.” Such a construction obviously expands the constitutional prohibition so as to interdict an alteration by subsequent legislation of apart of the legal procedure in force at the time of the committing of the offence. I am not aware that this view has ever been sanctioned by a judicial decision, but it is important to notice that it originated not in any loose' notion with respect to the character or scope of the legislation that was prohibited, but from the consideration that this clause of the constitution was remedial, and that the particular subject over which it was t-hus sought to be extended was, from special considerations, within the mischief. The learned judge thus summarizes the evil uses to which these laws had been put by the English parliament; he says: “Sometimes they respected the crime by declaring acts to be treason which were not treason when committed; at other times they violated the rules of evidence to supply a deficiency of legal proof, by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband, or other testimony which the courts of justice would not admit; at other times they inflicted punishments where the party was not by law liable to any punishment ; and in other cases they inflicted greater punishment than the law annexed to the offence.” Conceiving these to be the evils to be extirpated, Judge Chase so amplified the remedy by his construction, as to make it effective against such evils. It should be observed, however, that the view so taken has no tendency to introduce any uncertainty embarrassing to the present inquiry, with respect to the subjects to which the provision is applicable, for it still applies only to specialized classes of cases.

It is obvious, then, accepting either the wider or narrower exposition of the constitutional clause in question, that it does not comprehend an inhibition against the passage of the enactment now challenged by this defendant. This statute plainly does not denounce a punishment in consequence of any act already done which was not punishable when done; nor does it increase a punishment incident to a past act; nor does it affect the mode of proving .the offence. It leaves all these things absolutely as they were at the time of the commission of this crime. All that it does is to modify a matter of procedure. The legislative declaration that a crime of this class-should not be prosecuted or punished unless an indictment was found within two years, was beneficial to the defendant as long as the rule existed; but it was a mere privilege, and constituted a part of the public policy, being a regulation of the-course of the prosecution of the crime. It neither created the crime, nor in any degree affected its punishment. In order to bring such an act within the category of ex post faeto laws,, the definition of such a law would have to be stretched, so as-to take in all modifications of law existing at the time of the-doing of the criminal act that have any tendency inimical to-the culprit. But there is nothing to justify such a notion. Even if the extravagant assumption should be admitted that it is oppressive to disappoint the expectations of this defendant,, arising out of this abrogated law, that he would not be hold to answer for crimes of this kind after they had slept, perhaps from being undiscovered, for over two years, yet such admission cannot in any degree affect the subject of inquiry, because the legislature has the undoubted general right to pass retrospective laws, and to decide whether such laws, even if they are harsh, are not necessary for the public welfare. Nor is the circumstance that this limitation existed at the time of the doing of these criminal acts, and that its removal by subsequent legislation has a tendency to increase the risk of pun ishment, anything to the present purpose, because such an enhancement of the risk of punishment is not prohibited by the clause under review. The constitution does not guarantee to criminals that their risk of conviction arising out of the modes of their prosecution, shall not be increased by future legislation. Indeed, it seems to run into the absurd for a criminal to assert an indefeasible right as against the legislature, not to be tried or punished for his offences after a specified time, for such a claim assumes the semblance of an assertion that the criminal act was done in reliance on such an expectation. I cannot perceive that the clause in question is a restraint on the legislative power to modify at will any of the regulations of the trial of the offence even in the most essential particulars. But for the presence of another constitutional restriction, the party charged could be deprived even of trial by jury. The rule of procedure that the indictment in matters of this class should be tried within two years, was no more sacred against repeal than many of the other rules designed for the protection of the culprit against possible injustice. In outlaws there are provisions that on indictment for the higher crimes, the person indicted shall have a copy of such indictment and a list of the jury served upon him two entire days at least before the trial, and that every indictment shall be tried the term in which issue is joined or the term after, unless the court, for just cause, shall allow further time; and yet, would it be pretended that an act repealing such regulations and operating retrospectively, would be an ex post facto law? It is presumed no one would pretend this, and yet their rescission would materially and injuriously affect the interest of delinquents. Laws of this kind are retrospective laws, but not ex post facto laws, and they are not, therefore, within the scope of the prohibition in question. The mistake sometimes made is in omitting to notice that an ex post facto law is not a law that in a general way alters the old law to the oppression of the party accused; but that it is a law that works oppression in one of three enumerated instances, to wit, when it originates or increases the punishment by retrospective legislation; or (perhaps) changes the rules of evidence to the detriment of such accused. If the. constitutional prohibition forbade any modification of the existing law whose tendency was to increase the party’s peril, then, undoubtedly, the present law, as well as many of those which have been judicially sanctioned, could not be vindicated. But that such was not the true doctrine has been very uniformly decided. “The expressions, ex post facto,” says the court, in the case already cited from Dallas’ Reports, “ are technical; they had been in use long before the revolution, and had acquired an appropriate meaning by legislators, lawyers and authors.” In Fletcher v. Peck, 6 Cranch 87, 138, Chief Justice Marshall says: “ An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed,” and Chancellor Kent eulogizes the comprehensive brevity and precision of this definition, (4 Kent 409), and this is the definition adopted in the case of Hartung v. People, 22 N. Y. 104, by the Court of Appeals of the State of Kew York. To the same effect I find the judicial definitions in all the books, and yet it seems certain that these constructions are all wrong, if a law of the kind in question embraces not only the particular, cases thus specified, but the present case also, which is the instance of a law reviving the right to prosecute. The time of limitation as originally prescribed, had no connection with the punishishment as then prescribed. Such limitation was beneficial to the prisoner, not because it affected the penalty in any respect whatever, but inasmuch as its. tendency was to diminish the chances of the discovery of his crime in case of his guilt, or on the assumption of his innocence, to insure a trial while the ■transaction was fresh in the memory of the witnesses. Such an advantage is similar in kind to the privilege possessed by a prisoner to have counsel assigned for his defence, or to have the right to challenge peremptorily a certain number of jurors, and it has never been supposed that the abrogation by subsequent legislation of such privileges was unconstitutional. This is the principle sustained by the authorities. A subsequent law giving the government additional challenges was adjudged legitimate in Walston v. Commonwealth, 16 B. Mon. 15, and the same result was reached with respect to a similar exercise of the legislative power authorizing the amendment of indictments in State v. Manning, 14 Texas 402. So also a statute was not deemed objectionable in its application to past transactions by the Supreme Court of Massachusetts, that abolished the common law doctrine of variance. Commonwealth v. Hall, 97 Mass. 570. There are other cases having the same aspect.

Such changes as these are justly regarded as adjustments of the methods of procedure, and consequently as being legitimate exercises of legislative authority, and in this same class the prescription of the time within which a crime shall be prosecuted is placed by Mr. Bishop. On this subject this is the language of this experienced author: “A statute of limitations compels the state to prosecute the crime within a specified period, if at all, by withholding from the courts jurisdiction over the offence afterwards. And it has already been decided, in a case of another class, that if the legislature takes away the jurisdiction so that no prosecution can be had, it may revive the old, or create a new jurisdiction, and then, though the right to prosecute had once lapsed, the prosecution may be carried on under the new law. This is something pertaining not to the right, but to the remedy, and a statute authorizing a prosecution after the period of limitation had lapsed, would seem to come within this principle. It pertains to the remedy. It does not punish an act innocent when cominitted, or add to the punishment which th'e law then prescribed.”

The authority to which reference is made in this extract is that of Commonwealth v. Getchell, 16 Pick. 452, and the doctrine of which is confirmed in Commonwealth v. Mott, 21 Pick. 492. A judgment was called for on this point: a person had committed certain offences for which he was liable to punishment under an existing statute; the legislature repealed such statute, and subsequently this repealer was itself repealed; the question was, whether the culprit could be punished under the original act so revived. The decision was in favor of this exercise of the legislative power, and the criminal was accord ingly punished under the act so resuscitated. In that case, as in the present one, there was a period during which the crime could not have been punished under any law, and there seems to be nothing more than a phantastical distinction to be drawn between the revival of a right to prosecute, when such right has been suspended by the revocation of the statute in which it is inherent, and when such effect has been the result of lapse of time under a statute of limitations. In either event, in my judgment, the right to prosecute may be thus restored.

In addition to the foregoing considerations, it is to be remembered that the finding of an uncertainty with respect to the subject under consideration, is to resolve the question involved against the defendant. The power of the legislature cannot be circumscribed except upon sure grounds. Such is the familiar rule of construction. Neither should it escape observation, that to extend the constitutional clause in question so as to embrace the present case, would be to extend it indefinitely; the prohibition would have nothing like settled boundaries; the entire matter would be thrown into confusion. And if it be said that the legislative power exercised in this case is liable to be much abused to the oppression of the citizen, the answer is that this is an imperfection necessarily inherent in all delegations of the law-making prerogative.

Touching the second point raised in the brief of the counsel of the defendant, that the act of limitation had the operation of a pardon of the crimes antecedently committed by the defendant, I think it sufficient to say, that nothing is perceived in this statute which will sustain such a construction. The design of the law is to protect the innocent, and not to absolve the guilty. The bar against prosecution established by it can be taken advantage of by both of such classes of persons, and consequently'there is no induction to be derived from the purpose to be accomplished, of an intent to condone an offence. Such a force has never heretofore been supposed to be lodged in such laws. I have not been able to see any plausibility in this contention.

I conclude with the remark that all the authorities cited in the brief of the defendants’ counsel have been carefully examined, and that it is not conceived that any of them are in opposition to the views above expressed.

My conclusion is, that the ruling of the trial judge was correct.

Van Syckel, J., concurred.

Dixon, J., dissented.