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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 defence. 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. Commonwealth, 9 Cush. (Mass.) 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 er post facto and those which merely affect the remedy, and are, therefore, applicable to the case of an offence previously committed, is well illustrated by the case of Ratzky v. The People, 29 N. Y. 124. There the prisoner had been convicted of murder in the first degree; the offence was committed when the act of 1860 was in 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 offence, 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 offences previously committed, was ex post facto. But at the
time of the commission of the offence, in 1861, it was the wellsettled law of New York, as decided in Shepherd v. The 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 reversal of the 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 bad, 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 offence 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 offence, 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 offence, and at the time of his trial and conviction, a rule of law in New York bad 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 defence upon any subsequent trial for the same offence. 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 offence, 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 the law in force when the trial and verdict were had and when the offence was committed.
Davies, J., said, p. 132: “ It would follow from these considerations and the authority of the case of The 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.”
And Denio, C. J., said: “ 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 the 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 offence 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. The 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 offence 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 offence 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 offence 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 offence 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 offence. 26 id. 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 offence 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 offence, 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 offence, 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 bad been conditional and not absolute, so that no one could plead its pardon unless be 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 offence. 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 offence was committed. The court remarked, that