Opinion of the Court-DUNBAR, J. [2 Wash. pellant that either anything decided or any dictum in the case of Kring v. State, 107 U. S. 221 (2 Sup. Ct. Rep. 443), supports his contention in this case. What was held in that case was that "within the meaning of the constitution any law is ex post facto which is enacted after the offense was committed, and which, in relation to it or its consequences, alters the situation of accused to his disadvantage." Kring had been indicted for murder in the first degree. He had been tried four times, and convicted once on a plea of guilty of murder in the second degree, and was sentenced to imprisonment in the penitentiary for twenty-five years. He took an appeal from the judgment on the ground that he had had an understanding with the prosecuting attorney that if he would plead as he did his sentence should not exceed ten years' imprisonment. The judgment was reversed by the supreme court, and when the case came on for trial again he refused to withdraw his plea of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded murder in the second degree.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 was affirmed by the supreme court of the State of Missouri. It was conceded in that case that, at the time of the commission of the crime, in the State of Missouri, under the law, the acceptance by the prosecuting attorney and the court of the plea of murder in the second degree to an indictment of murder in the first degree, and the conviction and sentence of the defendant under it of murder in the second degree, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense; but the state court overruled this defense on the ground that by July, 1891.] Opinion of the Court-DUNBAR, J. § 23 of article 2 of the constitution of Missouri, which took effect after the commission of the crime by Kring, the former law was abrogated, and that he could be tried for murder in the first degree notwithstanding his conviction and sentence for murder in the second degree; and the supreme court of the United States by a divided court held that the article in the new constitution was an ex post facto law. But in that case a perfect defense to the crime of murder in the first degree which existed at the time of the commission of the crime was taken away by the new law; a defense, at least, which the defendant could avail himself of by the consent of the court, and a defense which he had availed himself of by such consent at his former trial. And well the court said: "Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death." And again says the court: "The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that as to that offense it is ex post facto?" "In that case," said the court, "the constitution of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment, for, whereas the law as it stood when the homicide was committed was, that when convicted of murder in the second degree he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction.” But it is certainly difficult to see the application of this reasoning to the case at bar. It is true, as urged by appellant, that § 1000 of the Code of Washington provides that "when an indictment indorsed 'not a true bill' has been Opinion of the Court- DUNBAR, J. [2 Wash. presented in court and filed, the effect thereof is to dismiss the charge, and the same cannot be submitted to or inquired of by the grand jury unless the court so orders." But this section is evidently not intended to confer any right upon the defendant, but simply to expedite the business of the court, subject to the direction of the court. In order to make it avail the defendant, it must be presumed (1) that the grand jury would have returned "not a true bill;" and, (2) that after they had done so, the court would not have allowed the charge to be submitted to another grand jury. Such presumptions can hardly be indulged in favor of defendants who seek to escape from a trial upon the merits. No one can or should question the right of the defendant to be tried by the law in force when the crime was committed. This is a principle that is founded in natural justice, that is warranted by the wisdom of ages, and guaranteed by our constitution; but, while the defendant must be protected in every substantial right, the rule must not be so narrowly construed as to defeat the ends of justice, or hamper or retard progress by preventing the enactment of laws governing questions of procedure which experience teaches us should be enacted; but the limitation must be construed as affecting the rights of parties, as distinguished from such as merely change the remedies by which those rights are to be enforced. In this case we cannot see that the condition of the defendant is changed for the worse. The law complained of makes no new offense. It gives no new definition to the crime he is charged with. It does not increase the punishment for the commission of the crime. It does not change the rules of evidence to make conviction more easy. None of his rights are interfered with. Upon his arraignment he stands in exactly the same position with reference to his trial, and the probabilities of his acquittal or conviction, that he did when the old law was in force. The state has simply July, 1891.] Opinion of the Court-DUNBAR, J. changed its procedure. Of this he cannot be heard to complain, for, as is said by Mr. Cooley in his Constitutional Limitations, page 329: "So far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose." So far as the retroactive or retrospective quality of the law is concerned, it is not retroactive in any sense that can injure the defendant, or in any constitutional sense. In all retroactive laws there must be an element of surprise, by which the persons whose rights are affected are taken unawares, and are called upon to act in a manner different from what they had been led by the previous state of the law to anticipate. Wade, Retroactive Laws, § 34. It is unnecessary to repeat that the defendant's case does not fall within the scope of this definition. The only limit imposed upon the legislative power of the states in reference to the passage of retroactive laws by the constitution of the United States is, that such laws shall not be ex post facto, and shall not impair the obligations of a contract. Railroad Co. v. Nesbit, 10 How. 395, and cases cited; Watson v. Mercer, 8 Pet. 88, and cases cited. The second contention is that the judgment must be reversed on the ground of misconduct of the jury in separating and each going his own way without the custody of the court at various times during the trial, and in returning a sealed verdict. On this point the record shows that the jury separated, but is silent as to whether such separation was by consent of the parties. A strong and somewhat exhaustive argument was made by appellant's attorney 36-2 WASH. Opinion of the Court-DUNBAR, J. [2 Wash. upon this point, urging that, in the absence of an affirmative showing of consent, no presumption of consent would attach; while, on the other hand, it was claimed by the attorney-general that, inasmuch as the statute allows the jury to separate with the consent of the parties, and the record shows that the court allowed them to separate, the presumption therefore is that the parties did consent. But it is not necessary for us to discuss this proposition. Section 278 of the Code of Washington provides the manner in which the question of misconduct of the jury shall be raised on motion for new trial, which is by affidavit. As this ground for new trial was not shown in the manner provided by the statute, it will not be considered by this court. As to the sufficiency of the evidence, we think we would not be justified in interfering with the prerogative of the jury in this case to pass upon the weight of testimony. Competent testimony was introduced tending to show the commission of the crime charged by the defendant. The jury heard the testimony, saw the witnesses on the stand, noted their manner of testifying, listened to the testimony concerning the age and experience of the defendant and the tender age and want of experience of the female; the fact that she was under his own roof, and to a certain extent under his protection; that she was just merging into womanhood, and that she was at that critical age when judgment is weak and passion is strong, and when virtue falls an easy prey to the blandishments of the designing libertine-artifices and blandishments which, exercised upon a woman of more mature years, would fall harmless. All these things the jury had a right to take into consideration. They probably did take them into consideration, and, considering all the circumstances of the case, under the instructions of the court, they adjudged him guilty, and he must abide by their decision. Our statute of seduction has no reference |