suit shall be instituted against her personally for a violation of the revenue law, she can have the full benefit of this statute; or, if she is impatient of the delay of the officers in instituting such proceeding, she can, under sect. 3076 of the Revised Statutes, cause such proceeding to be instituted, in which she can have the same relief.

But if the present action be sustained on the ground of the absence of fraudulent intention on her part, the officer making the seizure is held liable in the absence of such a proceeding, though in such case the court might have protected him by a certificate of probable cause, and though he may have done his duty and been guilty of no conversion. Such a construction of the statute requires him to know the guilty or the innocent intent of a party violating the law at the hazard of personal liability for the result.

It is to be observed, also, that all the trouble, cost, and vexation of this suit could have been avoided by an application to the Secretary of the Treasury under sect. 5293 and the rules prescribed by that officer for such cases, when he would undoubtedly have remitted the forfeiture on what were the undisputed facts of the case, on payment of the small sum assessed as the duty.

We think that in making the seizure the defendants only did their duty, and that whatever the hardship was to the plaintiff, they are not liable in this action on the facts found in the verdict of the jury.

Judgment affirmed.

MR. JUSTICE FIELD did not sit in this case, nor take any part in deciding it.

KRING v. MISSOURI

1. A. was convicted of murder in the first degree, and the judgment of condemnation was affirmed by the Supreme Court of Missouri. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal, been reversed and set aside. By the law of Missouri in force when the homicide was committed this sentence was an acquittal of the crime of murder in the first degree; but before his plea of guilty was entered the law was changed, so that by force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. Held, that as to this case the new law was an ex post facto law, within the meaning of sect. 10, art. 1, of the Constitution of the United States, and that he could not be again tried for murder in the first degree.

2. The history of the post facto clause of the Constitution reviewed in connection with its adoption as a part of the Constitution, and with its subsequent construction by the Federal and the State courts.

3. The distinction between retrospective laws, which relate to the remedy or the mode of procedure, and those which operate directly on the offence, is unsound where, in the latter case, they injuriously affect any substantial right to which the accused was entitled under the law as it existed when the alleged offence was committed.

4. Within the meaning of the Constitution, any law is ex post facto which is enacted after the offence was committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage.

ERROR to the Supreme Court of the State of Missouri.
The case is stated in the opinion of the court.

Mr. Jefferson Chandler and Mr. L. D. Seward for the plaintiff in error.

Mr. Samuel F. Phillips for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court. Kring was indicted in the Criminal Court of St. Louis for murder in the first degree, charged to have been committed Jan. 4, 1875, and he pleaded not guilty. He has been tried four times before a jury, and sentenced once on a plea of guilty of murder in the second degree. His case has been three times before the Court of Appeals, and three times before the Supreme Court of the State. In the last instance, the Supreme Court affirmed the judgment by which he was found guilty

of murder in the first degree and sentenced to be hung. He thereupon brought the present writ of error.

It is to be premised that the Court of Appeals is an intermediate appellate tribunal between the Criminal Court of St. Louis and the Supreme Court of the State, to which all appeals of this character are first taken.

At the trial, immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty of murder in the second degree. The plea was accepted by the prosecuting attorney and the court, and he was thereupon sentenced to imprisonment in the penitentiary for twentyfive years. He took an appeal from the judgment on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did, his sentence should not exceed ten years' imprisonment. The Supreme Court reversed the judgment, and remanded the case to the St. Louis Criminal Court for further proceeding, where, when the case was again called, he refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty of murder in the second degree. The court, then, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree and directing a general plea of not guilty to be entered. On this plea he was tried, found guilty, and sentenced to death, and the judgment, as we have already said, was affirmed by the Supreme Court of the State.

By refusing to plead not guilty as charged in the indictment, and to withdraw his plea of guilty of murder in the second degree, the defendant raised the point that the proceedings under that plea- namely, its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it were an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offence. This point he insisted on in the Circuit Court, the Court of Appeals, and the Supreme Court.

Both these latter tribunals, in their opinions, which are a part of the record, conceded that such was the law of the State of Missouri at the time the homicide was committed. But they overruled the defence on the ground that by sect. 23, art.

2, of the Constitution of Missouri, which took effect Nov. 30, 1875, that law was abrogated, and for this reason he could be tried for murder in the first degree, notwithstanding his conviction and sentence for murder in the second degree.

As after the commission of the crime for which he was indicted this new constitution was adopted, and, as it is construed by the Court of Appeals and the Supreme Court, it changes the law as it then stood, to his disadvantage, the jurisdiction of this court is invoked on the ground that, as to this case, and as so construed, it is an er post facto law, within the meaning of sect. 10, art. 1, of the Constitution of the United States.

That it may be clearly seen what the Supreme Court of Missouri decided on this subject and what consideration they gave it, we extract here all that is said in their opinion about it.

"There is nothing in the point," they say, "that after an accepted plea of guilty of murder of the second degree the defendant could not be put upon trial for murder of the first degree. We shall, on that proposition, accept what is said by the Court of Appeals in its opinion in this cause."

What that court said on this subject is as follows:

"The theory of counsel for defendant that a plea of guilty of murder in the second degree, regularly entered and received, precludes the State from afterwards prosecuting the defendant for murder in the first degree, is inconsistent with the ruling of the Supreme Court in State v. Kring (71'Mo. 551), and in State v. Stephens (id. 535). The declarations of defendant that he would stand upon his plea already entered were all accompanied with a condition that the court should sentence him for a term not to exceed ten years, in accordance with an alleged agreement with the prosecuting attorney, which the court would not recognize. The prisoner did not stand upon his plea of guilty of murder in the second degree; he must, therefore, be taken to have withdrawn that plea, and, as he refused to plead, the court properly directed the plea of not guilty of murder in the first degree to be entered.

"Formerly it was held in Missouri (State v. Ross, 29 Mo. 32) that, when a conviction is had of murder in the second degree on an indictment charging murder in the first degree, if this be set aside, the defendant cannot again be tried for mur

der in the first degree. A change introduced by sect. 23 of art. 2 of the Constitution of 1875 has abrogated this rule. On the oral argument something was said by counsel for the defendant to the effect that under the old rule defendant could not be put on his trial for murder in the first degree, and that he could not be affected by the change of the constitutional provision, the crime having been committed whilst the old constitution was in force. There is, however, nothing in this; this change is a change not in crimes, but in criminal procedure, and such changes are not ex post facto. Gut v. State, 9 Wall. 35;

Cummings v. Missouri, 4 id. 326."

We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder in the first degree. And that, but for the change in the Constitution of the State, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change of the Constitution, it would, in this case, be liable to objection as an ex post facto law, the only answer is, that there is nothing in it, as the change is simply in a matter of procedure.

Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the change cannot be denied.

It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea, nor upon its acceptance by the State's attorney, nor the consent of the court; but it stands upon the judgment and sentence of the court by which he is convicted of murder in the second degree, and sentence pronounced according to the law of that guilt, which was by operation of the same law an acquittal of the other and higher crime of murder charged in the same indictment.

It is sufficient for this case that the Supreme Court of Missouri, in the opinion we are examining, says it was so, and cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for plaintiff in error cites to the same