This is a writ of error to the supreme court of Missouri. The plaintiff in error was indicted in the criminal court of St. Louis for murder in the first degree, charged to have been committed January 4, 1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once on plea of guilty of murder in the second degree. His case has been three times before the court of appeals of that state, and three times before the supreme court of the state. In the last instance, the supreme court affirmed the judgment of the criminal court, by which he was found guilty of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ of error is directed. 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 to murder in the second degree, which plea was accepted by the prosecuting attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for 25 years. He took an appeal from this 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 10 years' imprisonment, and the supreme court reversed that judgment, and remanded the case to the St. Louis criminal court for further proceedings. In that court, when the case was again called, the defendant 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withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree, and ordered a general plea of not guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment was affirmed by the supreme court of the state. By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the second degree, 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, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense. This point he insisted on in the circuit court, and relied on it for reversing the judgment in the court of appeals and in the supreme court. Both these latter tribunals, in the opinions delivered by them, and which are 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 defense on the ground that by section 23 of article 2 of the constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and for this reason defendant could be tried for murder in the first degree, notwithstanding his conviction and sentence for murder in the second degree. As this new constitution was adopted after the crime was committed for which Kring is indicted, and, as construed by the court of appeals and the supreme court, changes the law as it then stood to the disadvantage of the defendant, the jurisdiction of this court is invoked on the ground that, as to this case, and as so construed, it is an ex post facto law, within the meaning of section 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: