dissenting. I believe that the majority opinion is in conflict with well-established constitutional doctrine and therefore I respectfully dissent.
The appellee, Murphy, was convicted of murder in a Kentucky state court. At the time the victim was killed, the Kentucky law was that a defendant could not be convicted by the uncorroborated testimony of an accomplice. Kentucky Rules of Criminal Procedure 9.62 (RCr 9.62).1 However, prior to Murphy’s trial, this statutory rule was repealed, and the state trial court, giving retroactive application to the repeal, refused to give to the jury Murphy’s tendered instruction to the effect that he could not be convicted on the uncorroborated testimony of an accomplice. Murphy contends that his conviction was in violation of the ex post facto provision in the federal Constitution. Article I, § 10. The majority, basing its opinion on a tendentious reading of Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), concludes that such retroactive application of the repeal of RCr 9.62 did not violate the ex post facto prohibition. It is my view that, on the contrary, Hopt clearly commands the very opposite result and that, in failing to give Murphy the benefit of the accomplice rule that was in effect at the time of the murder for which he was convicted, his conviction was in violation of the ex post facto provision.
As alternative reasons for reaching its result, the majority relies on propositions that were not relied upon in the prior resolutions of this case and not relied upon by the Commonwealth of Kentucky in this court. I will address these alternative propositions after dealing with the main proposition upon which the majority relies.
Before moving into a substantive discussion of the ex post facto issue, I believe it would be well to outline the interesting procedural history of this case because this alone will throw doubt on the validity of the majority opinion.
Murphy asserted this ex post facto contention in the Kentucky Supreme Court. That court, relying on Hopt and in ruling against Murphy, Murphy v. Commonwealth, 652 S.W.2d 69 (Ky.1983) (one justice dissenting) overruled its own recent decision to the contrary. Commonwealth v. Brown, 619 S.W.2d 699 (Ky.1981). In the latter case, the Kentucky Supreme Court had unanimously held that giving retroactive effect to the repeal of RCr 9.62 did indeed violate the ex post facto prohibition in the Constitution.
While the Supreme Court denied Murphy’s application for certiorari, 465 U.S. 1072, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984), three justices dissented. In his opinion dissenting from the denial of the writ, in which Justices Brennan and Powell con*214curred, Justice White pointed out that while the Kentucky court had found Hopt dispositive of Murphy’s claim, other courts, including the Third Circuit in Government of the Virgin Islands v. Civil, 591 F.2d 255 (3d Cir.1979), had concluded that Hopt required the opposite result.
In the district court for the Western District of Kentucky, then chief judge, now senior judge, Charles M. Allen granted ha-beas relief to Murphy, concluding that the ex post facto provision was violated by giving retroactive effect in Murphy's case to the repeal of RCr 9.62. Murphy v. Sowders, 607 F.Supp. 385, 387 (W.D.Ky.1985). Judge Allen, reading Hopt as I do, also pointed out that the Third Circuit in Civil had reached the same conclusion.
At the time of the murder for which Murphy was convicted, RCr 9.62 provided:
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.
Murphy does not contend that he was entitled to a directed verdict on the ground that there was no corroboration of the accomplice testimony. He does contend, however, that he was entitled to a charge, consistent with the statutory provision, in substance that he could not be convicted by the uncorroborated testimony of an accomplice; that is to say, Murphy contends that there was a jury issue as to whether Crit-tenden, who admittedly was at the scene of the murder, was an accomplice and whether his testimony was corroborated. The Commonwealth does not contend (as it could not) that, even if RCr 9.62 were applicable to his trial, Murphy would not have been entitled to such a charge;2 it simply contends that it was not a violation of the ex post facto clause to apply retroactively the repeal of this provision as the trial court did and thereby to deny to Murphy the benefit of the provision.
The issue in Hopt, as the majority opinion states, was whether it was a violation of the ex post facto provision to give retroactive effect to a statute allowing convicted felons to testify. At the time of the murder with which Hopt was charged, convicted felons were disqualified as witnesses, but after the murder and prior to Hopt’s trial, the Utah territorial statute had been repealed, allowing convicted felons to testify. The Utah courts had allowed a convicted felon to testify against Hopt. All that the Supreme Court had to say on this issue was:
Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.
The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be ob*215noxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but, leaving untouched the nature of the crime and the amount or degree of proof essential to conviction, only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged.
110 U.S. at 589-90, 4 S.Ct. at 210.
It appears to me that the repeal of the Kentucky corroboration rule that was in effect at the time of the murder in this case did “alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.” Id. at 589, 4 S.Ct. at 210. Moreover, “the quantity or the degree of proof to establish his guilt” was affected by the change in the law. Id. The repeal of RCr 9.62 did “authorize conviction upon less proof, in amount or degree, than was required when the offense was committed.” Id. at 590, 4 S.Ct. at 210. The repeal did not leave “untouched ... the amount or degree of proof essential to conviction.” Id.
Instead of giving Hopt a straightforward reading, the majority opinion seeks to avoid the plain meaning of Hopt by making an inaccurate comparison between the issue involved there and the issue involved here. The majority opinion states that the statute which had disqualified felons from testifying and the rule embodied in RCr 9.62 which required corroboration of accomplice testimony for a conviction accomplished essentially the same result in that the one deemed a felon’s testimony incredible as a matter of law and the other deemed the testimony of an uncorroborated accomplice incredible as a matter of law. Thus, the majority opinion’s argument goes, the repeal of the disqualification of the felon and the repeal of the rule requiring corroboration of an accomplice effected the same result, i.e., “the credibility impediment which was legislatively imposed upon a certain class of witnesses had been removed.” Maj. op. supra at 208.
Even if we assume, as the majority opinion assumes, that the only policy reason for a statute disqualifying a felon as a witness was that a felon’s testimony was considered incredible as a matter of law, but see 2 Wigmore, Evidence, § 519 (Chad-bourn rev. 1979) (suggesting that the disqualification was also part of the punishment), certainly the reason for the rule requiring corroboration of accomplice testimony for a conviction was not that the uncorroborated accomplice testimony is incredible as a matter of law. An alleged accomplice is allowed to testify, and ordinarily it is for the jury to determine whether the witness was an accomplice and the testimony is corroborated. Moreover, and more importantly, the effect of the accomplice rule is not that the uncorroborated testimony is deemed incredible but rather that it is not so credible, if not corroborated, as to establish guilt beyond a reasonable doubt. Thus the accomplice rule, when applicable, requires a specific direction to the jury that the reasonable doubt standard is not satisfied unless the accomplice testimony is corroborated. Accordingly, a law disqualifying a felon from testifying at all and a law requiring corroboration for a conviction are quite different in their effect. The one has to do with qualification to testify and the other has to do with the amount of proof necessary to satisfy the reasonable doubt standard.
The other way in which the majority opinion seeks to avoid the clear direction of Hopt is to interpret such phrases as “the degree, or ... the amount or measure of proof” or “the quantity or degree of proof” or “proof, in amount of degree” to refer only “to the burden of proof by which the *216government must prove its case.” At 209. In other words, argues the majority, the Hopt opinion means that, in the present context, retroactive application of the repeal of RCr 9.62 would violate the ex post facto provision only if it altered, for a conviction, the rule requiring proof beyond a reasonable doubt. The answer to this argument is twofold. First, this is not what Hopt says. It seems to me that if Hopt meant, by the use of these phrases, to refer only to the burden of proving guilt beyond a reasonable doubt, this would have been stated. Second, if, at the time of the decision in Hopt or now, the law were altered to allow a conviction bn proof less than that beyond a reasonable doubt, that would have been then and would be now invalid without consideration of the ex post facto clause. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), holding that proof beyond a reasonable doubt is, in state courts, necessary to satisfy the due process clause of the fourteenth amendment, the Court said:
Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.
Id. at 362, 90 S.Ct. at 1071.
The very first case cited by the Court in support of this proposition is Miles v. United States, 103 U.S. (13 Otto) 304, 26 L.Ed. 481 (1881), which was a criminal appeal that came to the Supreme Court from the Utah territorial court approximately two years before Hopt.
Accordingly, if the Court in Hopt had been referring to the burden of proving guilt beyond a reasonable doubt, the ex post facto prohibition would have been irrelevant.
Supreme Court decisions before and after Hopt do not lead to a different result than that which this dissent supports. While I agree with the Third Circuit in Civil that the ex post facto concept “has not been defined [by the Supreme Court] with any precision,” 591 F.2d at 258,1 also agree with it that the Court’s decisions generally support the proposition that retroactive application of a repeal of a rule requiring corroboration of accomplice testimony is prohibited by the ex post facto clause. The majority is correct to point out that in Hopt, as in later cases, the Court has opined that changes in law that “related to modes of procedure only” do not run afoul of the ex post facto clause when applied retroactively to a criminal defendant. Hopt, 110 U.S. at 590, 4 S.Ct. at 210. Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17 (1981) (no ex post facto violation “if the change effected is merely procedural”); Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896) (no violation if “the provisions in question related simply to procedure”). However, the Court stated long ago emphatically that “it is obvious that a law which is one of procedure may be [also] obnoxious as an ex post facto law.” Kring v. Missouri, 107 U.S. (17 Otto) 221, 232, 2 S.Ct. 443, 27 L.Ed. 506 (1883). Addressing precisely this issue, the Court in Kring plainly decided that only a new law that is merely procedural will be insulated from ex post facto challenge:
[C]an any substantial right which the law gave the defendant at the time to which his guilt relates, be taken away from him by ex post facto legislation, because, in the use of a modern phase, it is called a law of procedure? We think it cannot.
Id.
Contrary to the majority's assertion, Supreme Court cases subsequent to Hopt have established that the state violates a “substantial right” of a criminal defendant when it applies to him ex post facto a law that is “more onerous ... than the law in effect on the date of the offense.” Weaver v. Graham, 450 U.S. at 30, 101 S.Ct. at 965; Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977) (“It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.”); Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925) (legislation violates clause if “harsh or oppressive as applied to the plaintiffs in er*217ror”). See also Ex parte Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890) (legislation violates clause if it “alters the situation of the accused to his disadvantage”); Kring v. Missouri, 107 U.S. at 235, 2 S.Ct. at 455 (same). The Court has expressly noted that:
[t]he presence or absence of an affirmative, enforceable right is not relevant ... to the ex post facto prohibition, which forbids the imposition of ... [a law that is] more onerous than the law in effect on the date of the offense.
Weaver v. Graham, 450 U.S. at 30-31, 101 S.Ct. at 965.
As stated earlier, the majority opinion presents two alternative, fall back arguments for reversal of the grant of habeas relief.
The first argument is that, in point of fact, the trial court refused to give Murphy’s proposed charge requiring corroboration because it determined that there was no accomplice relation between Murphy and Crittenden. Thus, argues the majority opinion, the instruction would not have been given even if RCr 9.62 had not been repealed and therefore there is no ex post facto issue before this court. In response, I do not read the transcript as does the majority opinion, and apparently the Commonwealth does not either. The Commonwealth has not made this contention in the Kentucky Supreme Court, or in the federal district court or here. In view of the fact that both Crittenden and Murphy were charged with this murder, it being alleged that both were present at the murder, it is difficult to see how it could make the contention. Even if the trial court did refuse to give the instruction on the basis of a finding that Crittenden was not an accomplice, since the Kentucky Supreme Court in no wise relied on this possible alternative state law ground for affirmance of the conviction, we would of necessity address the constitutional issue. Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980).
The other alternative ground of the majority for reversing the grant of habeas relief is that the state trial judge did not charge the jury affirmatively that Murphy could be convicted by the uncorroborated testimony of Crittenden. (This appears to be a kind of harmless error argument.)3 This may be, but it was certainly the intent of the state trial court, in view of its denial of Murphy’s request to give the accomplice charge, to convey the idea to the jury that Crittenden’s testimony could be enough to convict Murphy, and the charge was subject to such interpretation. More importantly, as pointed out with respect to the other alternative basis for reversal, the Kentucky Supreme Court decided the constitutional issue and, consequently, we must decide it. Hockenbury, 620 F.2d at 115.
For the reasons set out in this dissent, I would affirm the district court in the grant of habeas relief.
. This had been the statutory rule in Kentucky since 1854. Murphy v. Commonwealth, 652 S.W.2d 69, 72 (Ky.1983).
. While the majority opinion states at 207 that the "defense characterized [Crittenden] as an accomplice,” it was in fact the prosecution that so characterized Crittenden. It is true that Crit-tenden was indicted separately, but he was charged with the same murder and tried with Murphy. The jury was unable to agree as to the guilt of Crittenden. The majority opinion agrees that the testimony corroborating Critten-den was “conflicting." Maj. op. supra at 207.
. This ground for denying habeas relief, like the other alternative ground asserted by the majority, has not been asserted by the Commonwealth in the other courts or here.