[p. 131]
COOK, J., delivered the opinion of the court.

This court in Traylor's Case 100 Miss. 544, 56 So. 521 decided that the act charged in the present case was not a violation of section 1169, Code 1906.
Subsequently, this court, in State v. Rawles, 103 Mass. 807, 60 So. 782, overruled Traylor's Case, holding that the act which the indictment in the present case charges was a violation of the code section mentioned above. In the interim, the indictment charges that defendants in the present case did the acts which this court in the Traylor Case had decided did not come within the condemnation of the statute. The trial court sustained defendants' demurrer to the indictment, doubtless upon the theory that he was bound by the decision in Traylor's Case. So we have the question as to whether the decision in the Rawles Case is to have a prospective or a retroactive effect. In other words, after the decision of this court in the Rawles Case, will we consider Traylor's Case at all in the construction of the statute, in so far as the rights of the present defendants may be concerned?

We do not wish to be understood as announcing a general rule. We confine the rule herein announced strictly within the limits of this case. We are considering a change of decisions interpreting criminal statutes, and that alone.

The supreme court of Iowa, in State v. O'Neil, 147 Iowa 513, 126 N.W. 454, 33 L. R. A. (N. S.) 788, Ann. Cas. 1913B 691, discussed the precise question here presented. This case brought forth four opinions, all of which held that the defendant was not guilty; that he  [p. 132]  was protected by the decision which was in force at the time it was alleged he did the act charged against him, and that a subsequent decision, overruling the former decision, would not destroy his defense. The several judges writing opinions in the case referred to gave different reasons for their conclusions, but all agreed that to hold otherwise would be unjust.

Quoting from the majority opinion, written by Judge MCCLAIN, it is said:
"In criminal cases, where the life or liberty of an individual is involved on one side, and the enforcement of law in the interest of the public welfare on the other, no private right of contract or property being imperiled by liberality of construction, the courts go further than in civil cases to recognize the common judgment of humanity as to what is right and just, and they allow many exceptions to statutory definitions of what shall constitute a crime."

This seems to express the dominant thought running through all the opinions, but the reasons given for the exceptions to the general rule were widely different.

The concurring opinion of Chief Justice DEEMER, quoted this observation of the supreme court of the United States, in Douglass v. Pike County, 101 U.S. 677, 25 L. Ed. 968:
"The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive."
The learned judge, referring to this quotation from the supreme court of the United States, said:
"If this be the rule with reference to the interpretation of statutes in actions involving property or contract rights, and such seems to be the doctrine established by the weight of judicial decisions, there is the more reason for holding it applicable to criminal cases, particularly where the court has once held the criminal statute void  [p. 133]  and of no effect, because contrary to some provision of the fundamental law."

We again quote from the opinion of the Chief Justice, as follows:
"I see no good reason for not holding that this case comes within the provision of section 21, of article 1, of the Bill of Rights, which prohibits the passage of ex post facto laws. An ex post facto law is one which makes an act innocent when done a crime. State v. Squires, 26 Iowa 340. Strictly speaking, perhaps, this refers only to laws passed by the legislature, but there is every reason for holding that it also applies to a change of judicial decisions. Decisions of courts construing statutes or declaring them unconstitutional are as much a part of the law of the land as legislative enactments. They become a part of the body of the law itself, and are not merely the evidences thereof, as are decisions relating to the unwritten or common law."

This reasoning appeals to us as sound, and in entire accord with the judicial decisions touching this question. Another reason given by Chief Justice DEEMER for his
concurrence in the conclusion of the court was thus expressed:
"I am very clearly of the opinion that no other basis is needed for the conclusion, which every one desires to reach in this case, than the constitutional provision against cruel and unusual punishment."

It occurs to us that the punishment of an act declared by the highest court of the state to be innocent, because the same court had seen fit to reverse its interpretation of a statute, would be the very refinement of cruelty; it is certainly unusual because no precedent can be found for its infliction; that it is unjust is perfectly obvious.

We think that a change of decisions involving the interpretation of criminal statutes should have a prospective effect. This rule seems to be the just and the most reasonable rule. This rule applies the same principle as  [p. 134]  the constitutional prohibition of ex post facto legislation. It will prevent injustice and also prevent cruel and unusual punishment of individuals entirely innocent of any intention to violate the laws of the state.

The supreme court of North Carolina, in State v. Bell, 136 N.C. 674, 49 S.E. 163, reviewed its former decision interpreting a criminal statute, and reached the conclusion that the former decision was wrong in holding that the act in question did not violate the statute. In the case under review, the defendant was held to be not guilty because the act done by him was innocent under the former decision. The reason for its conclusion was stated this way:
"While we hold the law to be as stated, we are embarrassed in applying this ruling to this case.  It may be that these defendants have acted upon the advice of counsel based upon the decision of this court in State v. Neal, 129 N.C. 692, 40 S.E. 205, supra. If so, to try them by the law as herein announced would be an injustice. While it is true that no man has a vested right in a decision of the court, it is equally well settled that where, in the construction of a contract or in declaring the law respecting its validity, the court thereafter reverses its decision, contractual rights acquired by virtue of the law as declared in the first opinion will not be disturbed. We have diligently searched for authority by which courts have been governed in cases such as the one before us. We find nothing very satisfactory. In view of the peculiar conditions with which we are dealing, we have deemed it but just to the defendants, and not at variance with any authority in this court, to order a new trial, with the direction that the testimony offered in this case, in so far as it is made admissible by the ruling of this court in State v. Neal, be admitted. If the defendants shall be able to establish their defense in accordance with the ruling in Neal's Case they are entitled to do so, but the construction now put upon the  [p. 135]  statute will be applied to all future cases. While, as we have said, we find no authority directly in point, we think this course is sustained by what is said in Wells on Stare Decisis 566. See also, Township v. State, 150 Ind. 168, 49 N.E. 961, 26. A. & E. Ency. 179; In re Dunham, 8 F. Cas. (No. 4146) 37."
Ingersoll v. State, 11 Ind. 464, and Endlich on Interpretation of Statutes, section 363, are authority for this holding.

The supreme court of the United States has uniformly held that a change of decision does not have the effect to impair contractual rights obtained while the changed decision was in force.

Our attention has not been directed to any judicial decision in conflict with our conclusions, and after much diligence in searching the books, we think it may be said that no such decision can be found.

The argument on behalf of the state is that when a decision is overruled, in legal contemplation, the decision never existed. This argument has been met and satisfactorily answered in the adjudicated cases. It is also said that every man is presumed to know the law, and no one can take the shelter under an erroneous decision of the highest court. This argument is, in our opinion, manifestly faulty. If the legal maxim has any application to a case like this, and is controlling, the maxim must be amended to read thus: "Ignorance of the law excuses no man, except members of the supreme judicial tribunal of the state."

The judgment of the trial court sustaining the demurrer to the indictment is affirmed and defendants are discharged.

Affirmed.