[181 U.S. 589, 590] In September, 1898, John P. Mallett and Charles B. Mehegan were indicted and tried in the criminal court of the county of Edgecombe, North Carolina, for conspiracy to defraud. They were convicted and sentenced to two years' imprisonment in the common jail. They appealed to the superior court. The record was certified up by the clerk of the criminal court on April 1, 1899. The superior court reversed the verdict and judgment, and granted a new trial. From this judgment of the superior court the state appealed, on July 7, 1899, to the supreme court, which reversed the judgment of the superior court, and remanded the cause to the criminal court, with directions that the sentence imposed by that court should be carried into execution.
At the time of the commission of the offense, and at the time of the trial in the criminal court of Edgecombe county, the state of North Carolina was not entitled to appeal to the supreme court of the state from the judgment of the superior court granting the defendants a new trial. There are two district criminal courts in the state,-the eastern and the western. In the eastern district, in which the county of Edgecombe is situated, the state, since March 6, 1899, by legislation of that date, is allowed to appeal to the supreme court from a judgment of the superior court granting a defendant a new trial, but such right of appeal is not allowed to the state from judgments of the superior court in cases on appeal from the western [181 U.S. 589, 591] district criminal court. It thus appears that the right of appeal from the superior court to the supreme court was conferred upon the state after the commission of the offense and the trial in the criminal and before the superior court had granted a new trial.
From the judgment of the supreme court of the state a writ of error was allowed to this court.
Messrs. F. H. Buskee and R. O. Burton for plaintiffs in error.
Messrs. J. C. L. Harris, B. G. Green, C. A. Cook and Attorney General Walser for defendant in error.
Mr. Justice Shiras delivered the opinion of the court:
Before considering the errors assigned by the plaintiffs in error to the judgment of the supreme court of North Carolina, it is proper that we should dispose of the motion made by the counsel for the state to dismiss the writ of error, on the alleged ground that the record does not disclose that any Federal question was raised in either of the courts in which the case was heard, and that no such question was raised.
It is, of course, obvious that there was no opportunity for the defense to raise in the criminal court the question as to the validity, as against the defendants, of the legislation allowing an appeal to the supreme court, because that legislation was not enacted till after the trial had been concluded.
It would also seem that the question of the validity of that legislation, in its Federal aspect, was not raised or considered in the superior court. It is true that in that court error was alleged to the action of the criminal court in permitting evidence of certain statements in the books of the defendants, and which books had been seized by the sheriff under an attachment against the property of the defendants, to be used on the trial against the defendants and over their objection; and that contention was sustained by the superior court, and the new trial was granted for that and other reasons. But it does not [181 U.S. 589, 592] appear that the superior court was formally called upon to consider any Federal question.
But we are of opinion that questions arising under the Constitution and laws of the United States were presented in the supreme court of the state, and were by that court considered and decided against the party invoking their protection.
It is true, as we learn from the first opinion filed by the supreme court, that such Federal questions were not considered by that court, or, at all events, were not treated as Federal questions, but as questions arising under state laws. But the record discloses that, after that opinion had been filed, but before it had been certified down, the defendants filed a petition for reargument, and presented the Federal questions on which they rely. The supreme court entertained the petition, and proceeded to discuss and decide the Federal questions. In support of the motion to dismiss, numerous decisions of this court are cited to the effect that it is too late to raise a Federal question by a petition for a rehearing in the supreme court of a state after that court has pronounced its final decision. Loeber v. Schroeder, 149 U.S. 580 , 37 L. ed. 856, 13 Sup. Ct. Rep. 934; Sayward v. Denny, 158 U.S. 183 , 39 L. ed. 942, 15 Sup. Ct. Rep. 768; Pim v. St. Louis, 165 U.S. 273 , 41 L. ed. 714, 17 Sup. Ct. Rep. 322.
But those were cases in which the supreme court of the state refused the petition for a rehearing, and dismissed the petition without passing upon the Federal questions. In the present case, as already stated, the supreme court of North Carolina did not refuse to consider the Federal questions raised in the petition, but disposed of them in an opinion found in this record. State v. Mallett, 125 N. C. 718, 34 S. E. 651. Had that court declined to pass upon the Federal questions, and dismissed the petition without considering them, we certainly would not undertake to revise their action.
The first contention we encounter in the assignments of error is that, as the statute which provides for an appeal from the superior court to the supreme court in criminal cases was not passed until after the commission of the offense charged and the trial in the criminal court, it was, as against the plaintiffs in error, ex post facto and in violation of art. 1 , 10, of the Constitution of the United States. [181 U.S. 589, 593] The opinion of the supreme court stating the facts and disposing of this question is brief, and may be properly quoted:
The subject has been several times considered by this court. The first case was that of Calder v. Bull, 3 Dall. 386, 1 L. ed. 648, where the important decision was made that the provision prohibiting ex post facto laws had no application to legislation concerning civil rights. But the opinion, delivered by Mr. Justice Chase, contains a classification of the criminal cases in which the provision is applicable:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates the crime or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the [181 U.S. 589, 594] time of the commission of the offense in order to convict the offender.'
In Cummings v. Missouri, 4 Wall. 277, 18 L. ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L. ed. 366, a law which excluded a minister of the gospel from the exercise of his clerical functions, and a lawyer from practice in the courts, unless each would take an oath that they had not engaged in or encouraged armed hostilities against the government of the United States, was held to be an ex post facto law, because it punished, in a manner not before prescribed by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction.
In Kring v. Missouri, 107 U.S. 221 , 27 L. ed. 506, 2 Sup. Ct. Rep. 443, will be found an elaborate review of the history of the ex post facto clause of the Constitution, and of its construction by the Federal and the state courts. Kring 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 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 the 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; and it was held, four of the justices dissenting, that, as to this case, the new law was an ex post facto law, and that he could not again be tried for murder in the first degree.
In Hopt v. Utah, 110 U.S. 574, 587 , 28 S. L. ed. 262, 267, 4 Sup. Ct. Rep. 202, 209, one of the questions presented was whether a law which made it competent for witnesses to testify to the commission of a crime who were incompetent to so testify at the time the crime was so committed was an ex post facto law, and it was unanimously held otherwise. Kring v. Missouri was cited and relied on by the plaintiff in error, and was disposed of by the court, per Mr. Justice Harlan, in the following observations:
In Gibson v. Mississippi, 162 U.S. 565 , 40 L. ed. 1075, 16 Sup. Ct. Rep. 904, it was held that the Mississippi Code, in force when the indictment was found, did not affect in any degree the substantial rights of those who had committed crime prior to its going into effect; it did not make criminal and punishable any act that was innocent when committed, nor aggravate any crime previously committed, nor inflict a greater punishment than the law annexed to such crime at the time of its commission, nor alter the legal rules of evidence in order to convict the offender; that the inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed; that the mode of trial is always under legislative control, subject only to the condition that the legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments.
In Thompson v. Missouri, 171 U.S. 380 , 43 L. ed. 204, 18 Sup. Ct. Rep. 922, it was held that an act of the legislature of Missouri, providing that comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute, is not ex post facto, under the Constitution of the United States, when applied to prosecutions for crimes committed prior to its passage. In the opinion in this case the previous decisions were again reviewed, and the following passage from Cooley's Treatise on Constitutional Limitations was quoted with approval:
Applying the principles established by these cases to the facts of the present case, we think it may be concluded that the legislation of North Carolina in question did not make that a criminal act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence, and require less or different evidence than the law required at the time of the commission of the offense; and did not deprive the accused of any substantial right or immunity possessed by them at the time of the commission of the offense charged.
It must not be overlooked that, when the plaintiffs in error perfected their appeal from the criminal court, by procuring its certification, on April 1, 1899, to the superior court, the new law, ratified on March 6, 1899, provided that the state could have the decision of that court reviewed by the supreme court.
Upon the whole, therefore, we agree with the supreme court of North Carolina in holding that the law granting the right of appeal to the state from the superior to the supreme court of the state was not an ex post facto law within the meaning of the Constitution of the United States.
The further contention, that the plaintiffs in error were denied the equal protection of the laws because the state was allowed [181 U.S. 589, 598] an appeal from the superior court of the eastern, and not from the western, district of the state, is not well founded.
In Missouri v. Lewis, 101 U.S. 23 , sub nom. Bowman v. Lewis, 25 L. ed. 989, it was held that, by the 14th Amendment of the Constitution of the United States, a state is not prohibited from prescribing the jurisdiction of the several courts, either as to their territorial limits, or the subject-matter, amount, or finality of their respective judgments or decrees; and that where, by the Constitution and laws of Missouri, the St. Louis court of appeals has exclusive jurisdiction in certain cases of all appeals from the circuit courts in St. Louis and some adjoining counties, and the supreme court has jurisdiction of appeals in like cases from the circuit courts of the remaining counties of the state, such an adjustment of appellate jurisdiction is not forbidden by anything contained in the 14th Amendment. It was said by Mr. Justice Bradley, giving the opinion of the court:
The principles of this case have been approved and applied in several subsequent cases. Hallinger v. Davis, 146 U.S. 314, 322 , 36 S. L. ed. 986, 990, 13 Sup. Ct. Rep. 105; Hodgson v. Vermont, 168 U.S. 272 , 42 L. ed. 464, 18 Sup. Ct. Rep. 80; Holden v. Hardy, 169 U.S. 384 , 42 L. ed. 788, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U.S. 172 , 44 L. ed. 119, 20 Sup. Ct. Rep. 77.
We therefore see no error in the action of the supreme court of North Carolina in holding that the state has control of its own legislation as to the cases in which it will permit appeals in its own behalf in its courts.
There remains to consider the contention that, in the trial in the criminal court, by the use of certain books of account belonging to them, the plaintiffs in error were thereby made to be witnesses against themselves, and thus their privileges and immunities as citizens of the United States have been abridged, and they are deprived of their liberty without due process of law, contrary to the 14th Amendment to the Constitution of the United States.
In the petition for a rehearing in the supreme court, which, as we have seen, is the only part of the record on which the plaintiffs in error can rely as raising Federal questions, the point was thus presented:
The only ground of objection shown by the record to have been taken by defendants' counsel to the admission of this evidence was 'because the testimony now offered was subsequent to the examination in the supplementary proceedings.'
Nothing seems to have been claimed, either in the criminal court or in the superior court, as to the inadmissibility of the books as evidence on the ground of any provision of the Federal Constitution. The supreme court thus treated the subject:
It therefore appears by the statement of the plaintiffs in error in their petition for a reargument that no Federal question was [181 U.S. 589, 601] raised or considered in the criminal court or in the superior court, in respect to the admission of the evidence, so that there was no basis on which to claim error in this respect in those courts. Nor did the supreme court, in passing upon the contention, deal with it as a Federal question, but as a mere question arising under the administration of the criminal law of the state, and there is, therefore, nothing in its action for us to review.
But we do not wish to be understood as implying that, even if this question had been duly presented in the state courts as a Federal question, there was error in admitting the evidence complained of.
The judgment of the Supreme Court of North Carolina is affirmed.