$ 52. Time of commission of offense. The term ex post facto necessarily implies a fact or an act done before the law in question is passed. The date of the commission of the offense alone governs in determining whether the constitutional provision has been violated. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot as to that offense be an ex post facto law. If passed after the commission of the offense, it is as to it ex post facto, though whether of the class forbidden by the constitution may depend on other matters.73 A statute which relates wholly to acts committed after it takes effect is not ex post facto,74 nor is a law which was in effect at the time when the act complained of was committed,75 nor a saving clause as to Pac. 980. And see In re Petty, 22 Kan. 477. 73 Kring v. Missouri, 107 U. S. 221, 27 L. Ed. 506, 2 Sup. Ct. 443; People v. Schmidt, 33 Cal. App. 426, 165 Pac. 555. A law passed after the commission of the offense is none the less ex post facto as to the person committing it because it took effect before he pleaded guilty and before judgment was rendered against him. Kring v. Missouri, 107 U. S. 221, 27 L. Ed. 506, 2 Sup. Ct. 443. 74 United States. Locke v. New New Orleans, 4 Wall. 172, 18 L. Ed. 334. Georgia. Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561, Ann. Cas. 1917 E 685, L. R. A. 1917 D 926. Idaho. Wooley v Watkins, 2 Idaho 590, 22 Pac. 102. Kentucky. City of Louisville v. Roberts & Kreiger, 32 Ky. L. Rep. 182, 105 S. W. 431. Missouri. State v. Missouri Pac. R. Co., 242 Mo. 339, 147 S. W. 118. North Carolina. State v. Broadway, 157 N. C. 598, 72 S. E. 987. Ohio. Lessee of McMillan V. Robbins, 5 Ohio 28. Pennsylvania. Huber v. Reily, 53 Pa. St. 115. Virginia. Morgan v. Com., 98 Va. 812, 35 S. E. 448. A statute imposing a tax on certain business occupations, which does not become effective until the commencement of the year following its passage, is not retroactive, and not an ex post facto law. Kehrer v. Stewart, 117 Ga. 969, 44 S. E. 854. A statute providing a penalty for nonpayment of a tax is not ex post facto where the tax without the penalty may be paid after the passage of the law. Sharpleigh v. Surdam, 1 Flip. 472, Fed. Cas. No. 12,711. 75 Coomer v. United States, 213 Fed. 1; Tyomies Pub. Co. v. United States, 211 Fed. 385; United States v. Pusey, Fed. Cas. No. 16,098; State v. Isabel, 40 La. Ann. 340, 4 So. 1; Citizens' Bank of Hayti v. Wells, 269 Mo. 190, 190 S. W. 314; Fussell v. State, 102 Neb. 117, 166 N. W. 197, L. R. A. 1918 F 421. On a prosecution for failure to pay a dog tax, the fact that the defendant was assessed as being the owner of the dog on a date prior to that on which the general law providing for such tax was put into effect in the county does not make the law ex post facto, since the past offenses which is contained in a statute repealing a former one.76 A statute merely penalizing the continuance after its passage of conditions previously created or existing is not ex post facto, provided a reasonable time is given in which to remedy them.77 Nor is a offense is the failure to pay after the taking effect of the law. State v. Widman, 112 Miss. 1, 72 So. 782. A statute requiring corporations to file anti-trust affidavits is not unconstitutional as applied to a case where a corporation organized before its passage is required some three years after its passage to file an affidavit covering a period of one year before the date fixed for filing it. State V. Mallinckrodt Chemical Works, 249 Mo. 702, 156 S. W. 967, aff'd 238 U. S. 41, 59 L. Ed. 1192, 35 Sup. Ct. 671. A rebate is given by a carrier within the meaning of the Elkins act when the money is paid to the shipper, and hence the statute is not ex post facto when applied to a transaction in which the money was paid after the passage of the act under an agreement made before its passage. United States v. Great Northern R. Co., 157 Fed. 288. A bastardy statute is not ex post facto when applied to a case where the child was conceived before, but born after, its passage, and where the state of pregnancy or birth of the child fixes the responsibility of the father, rather than the date of conception. Libby v. State, 42 Okla. 603, 142 Pac. 406. In People v. Warden of New York County Penitentiary, 223 N. Y. 307, 119 N. E. 564, rev'g 181 N. Y. App. Div. 934, 167 N. Y. Supp. 1121, it was held that an indeterminate sentence statute took effect immediately upon its passage rather than upon the appointment of a parole commission therein provided for, and hence was not ex post facto as to an offense committed after its passage but before the appointment of said board. 76 Ex parte Larkin, 1 Okla. 53, 25 Pac. 745, 11 L. R. A. 418. The defendant is not punished under the saving clause, but under the law as it existed at the time when the offense was committed. People v. Maxwell, 31 N. Y. Supp. 564. 77 So a statute imposing penalties upon railroad companies failing to construct and maintain openings through their rights of way and embankments for the drainage of water is not ex post facto as applied to existing embankments continued to be maintained after the passage of the act in a manner prohibited by it. Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 59 L. Ed. 1204, 35 Sup. Ct. 678, aff'g 250 Mo. 46, 156 S. W. 694. Nor is a statute depriving of the right to vote any person who, when he offers to register, is then in the state of a bigamist or polygamist, or is then actually cohabiting with more than one woman, as applied to a man who contracted a bigamous or polygamous marriage prior to the passage of the act. Murphy v. Ramsey, 114 U. S. 15, 29 L. Ed. 47, 5 Sup. Ct. 747. Nor a statute making possession of liquor prima facie evidence of guilt, as applied to one found in possession of liquor 14 days after the act took effect, even though such liquor was acquired prior to the latter date, since he had had full opportunity to get rid of it in the meantime by shipping it out of the state. State v. Denton, 164 N. C. 530, 80 S. E. 401. statute making it an offense for the father of an illegitimate child, whether born before or after the taking effect of the statute, to neglect or refuse to contribute to its support; 78 nor a statute making it an offense to abandon a woman whom the accused has seduced and then married to escape prosecution, as applied to a case where the marriage and abandonment took place after the passage of the act, although the seduction took place before; 79 nor was the selective service law adopted during the war with Germany ex post facto as to an alien who had taken out his first papers before its enactment.80 The previous commission of crimes may be considered in the creation of certain kinds of statutory offenses,81 or in determining the Nor a statute imposing a penalty upon deserters from the army who fail to return to service within a specified time after a proclamation provided for by the act. Huber v. Reily, 53 Pa. St. 115. Nor an amendment removing a time limit upon the right to deport alien prostitutes as applied to one found engaged in the prohibited occupation after its adoption. Ex parte Cardonnel, 197 Fed. 774. And though an agreement for the suppression of competition is valid when made, persons who become parties to it and carry out its provisions after the passage of an antitrust law making such agreements illegal may be punished under the provisions of such law. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. Ed. 417, 29 Sup. Ct. 220, aff'g 48 Tex. Civ. App. 162, 106 S. W. 918. A statute providing for the licensing of physicians by a board of medical registration, for the revocation of licenses under certain circumstances, and making it an offense to practice medicine without a certificate from the board, operates prospectively only. Neither the refusal to grant a certificate nor its revocation imposes any new or additional punishment or disability for a past act. France v. State, 57 Ohio. St. 1, 47 N. E. 1041. Statutes providing for the registration and licensing of physicians and making it an offense to practice without a license are not ex post facto laws as to physicians previously engaged in practice and who are refused a license under the statute. Reetz v. Michigan, 188 U. S. 505, 47 L. Ed. 563, 23 Sup. Ct. 390, aff'g People v. Reetz, 127 Mich. 87, 86 N. W. 396; Fox v. Washington Territory, 2 Wash. T. 297, 5 Pac. 603. Nor is a statute making it an offense for a physician who has been convicted of a felony to thereafter practice, even when applied to a physician who was so convicted before the passage of the act. Hawker v. People of State of New York, 170 U. S. 189, 42 L. Ed. 1002, 18 Sup. Ct. 573, aff'g 152 N. Y. 234, 46 N. E. 607. 78 Wamsley v. People, 64 Colo. 521, 173 Pac. 425; Com. v. Callaghan, 223 Mass. 150, 111 N. E. 773, certiorari denied 241 U. S. 667, 60 L. Ed. 1229, 36 Sup. Ct. 551 (mem. dec.).. 79 Thacker v. State, 62 Tex. Cr. 294, 136 S. W. 1095. 80 United States v. Bell, 248 Fed. 992. 81 A statute providing that a person known to be a pickpocket, thief or burglar, and having no visible or lawful means of support, shall be deemed a vagabond and punished in a prescribed manner, if prowling punishment imposed, 82 without rendering the statute ex post facto. Nor is a statute making it an offense to engage in a particular business or occupation given an ex post facto operation by admitting proof of acts done prior to its passage in prosecutions under it for the purpose of showing the pursuit in which the accused was engaged.83 § 53. Laws creating or aggravating offenses. The constitutional prohibition clearly prevents the legislatures from punishing as a crime an act previously committed, and which was innocent or not punishable when committed, and from aggravating an offense previously committed.85 § 54.-Laws regulating mode of procedure-In general. Laws regulating the mode of procedure in criminal cases are not within around certain places, is valid. Com. v. Ellis, 207 Mass. 572, 93 N. E. 823. 82 See § 60, infra. 83 As by admitting proof of previous sales of liquor in a prosecution under a statute making it an offense to engage in the business of selling intoxicating liquor. Clark v. State, 61 Tex. Cr. 597, 136 S. W. 260. The admission of evidence that the house kept by the defendant was reputed to be a house of ill fame previous to the adoption of the statute under which he was prosecuted for keeping such a house does not give such statute an ex post facto operation. Cadwell v. State, 17 Com. 467. 84 United States. Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356; Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648. Kentucky. City of Louisville v. Roberts & Kreiger, 32 Ky. L. Rep. 182, 105 S. W: 431; Com. v. Edwards, 9 Dana 447. Louisiana. Town of Mansfield v. Herndon, 134 La. 10, 63 So. 606; State v. Michel, 121 La. 374, 46 So. 430. Michigan. People v. Albright, 161 Mich. 400, 126 N. W. 432. Nevada. Eureka Bank Habeas Corpus Cases, 35 Nev. 80, 126 Pac. 655, 129 Pac. 308; Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825; 8. c., 16 Neb. 349, 20 N. W. 289. And see § 51, supra. Α statute repealing a general amnesty act for the benefit of persons in the confederate military service during the civil war comes within the constitutional provision. State V. Keith, 63 N. C. 140. And the same is true of a statute attempting to validate punishment of offenders which would otherwise be illegal for want of jurisdiction. In re Murphy, 1 Woodw. 141, Fed. Cas. No. 9,947. Where a statute creating an offense is adjudged unconstitutional because providing for a trial without a jury, a statute subsequently passed providing for jury trials in such cases cannot be given a retroactive operation so as to apply to acts committed before its passage. Com. v. Edwards, 9 Dana (Ky.) 447. 85 Calder v. Bull, 3 Dall. (U. S.) 386, 1 L. Ed. 648; Marion v. State, 16 Neb. 349, 20 N. W. 289. And see § 51, supra. As to statutes increasing the punishment for an offense, see § 57, infra. the constitutional prohibition if they do not dispense with any of the substantial protections with which the existing law surrounds the accused.86 It is competent, therefore, for the legislature, as to of 86 United States. Mallett v. North Carolina, 181 U. S. 589, 45 L. Ed. 1015, 21 Sup. Ct. 70, aff'g 125 N. C. 718, 34 S. E. 651; Thompson v. Utah, 170 U. S. 343, 42 L. Ed. 1061, 18 Sup. Ct. 620; Gibson v. Mississippi, 162 U. S. 565, 40 L. Ed. 1075, 16 Sup. Ct. 904; Duncan v. Missouri, 152 U. S. 377, 38 L. Ed. 485, 14 Sup. Ct. 570; Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262, 4 Sup. Ct. 202; Kring v. Missouri, 107 U. S. 221, 27 L. Ed. 506, 2 Sup. Ct. 443; Gut v. State, 9 Wall. 35, 19 L. Ed. 573; Hallock v. United States, 185 Fed. 417, certiorari denied 220 U. S. 613, 55 L. Ed. 610, 31 Sup. Ct. 717. Arkansas. Potter v. State, 42 Ark. 29. California. People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257; People v. Mortimer, 46 Cal. 114; People v. Schmidt, 33 Cal. App. 426, 165 Pac. 555. District of Columbia. Frisby v. United States, 38 App. Cas. 22. Florida, Lovett v. State, 33 Fla. 389, 14 So. 837; Mathis v. State, 31 Fla. 291, 12 So. 681. Indiana. Sage v. State, 127 Ind. 15, 26 N. E. 667; Robinson v. State, 84 Ind. 452. Iowa. State v. Pell, 140 Iowa 655, 119 N. W. 154. Louisiana. Morris v. St. Bernard Cypress Co., 140 La. 511, 73 So. 345; State v. Fourchy, 106 La. 743, 31 So. 325; State v. Cook, 52 La. Ann. 114, 26 So. 751; State v. Caldwell, 50 La. Ann. 666, 23 So. 869, 41 L. R. A. 718, 69 Am. St. Rep. 465; State v. Carter, 33 La. Ann. 1214. Maine. State v. Vannah, 112 Me. 248, 91 Atl. 985. Massachusetts. Com. v. Phelps, 210 Mass. 78, 96 N. E. 349, 37 L. R. A. (N. S.) 567, Ann Cas. 1912 C 1119; George v. Reed, 101 Mass. 378; Jacquins v. Com., 9 Cush. 279. Missouri. State v. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115; State v. Thompson, 141 Mo. 408, 42 S. W. 949; State v. Jackson, 105 Mo. 196, 15 S. W. 333, 16 S. W. 829. Nebraska. Marion v. State, 16 Neb. 349, 20 N. W. 289, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825. New York. People v. Green, 201 N. Y. 172, 94 N. E. 658, Ann. Cas. 1912 A 884; Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492. Oklahoma. Ault v. State, 5 Okla. Cr. 360, 115 Pac. 128; Garnsey v. State, 4 Okla. Cr. 547, 112 Pac. 24, 38 L. R. A. (N. S.) 600. Pennsylvania. Com. v. Kalck, 239 Pa. 533, 87 Atl. 61; Com. v. Duffy, 96 Pa. St. 506, 42 Am. Rep. 554. South Carolina. State v. Richardson, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238; City Council of Anderson v. O'Donnell, 29 S. C. 355, 7 S. E. 523, 1 L. R. A. 632, 13 Am. St. Rep. 728. Texas. State v. Manning, 14 Tex. 402; Ex parte Boyd, 50 Tex. Cr. 309, 96 S. W. 1079. Vermont. State v. Welch, 65 Vt. 50, 25 Atl. 900. Virginia. Jones v. Com., 86 Va. 661, 10 S. E. 1005; Perry v. Com., 3 Gratt. 632. Washington. State v. Newcomb, 58 Wash. 414, 109 Pac. 355; State v. Snell, 49 Wash. 177, 94 Pac. 926. Wyoming. People v. McDonald, 5 Wyo. 526, 42 Pac. 15, 29 L. R. A. 834. And see the other cases cited in the following notes. |