An exception to this rule is found in cases where the Supreme Court of the State entertains the motion and expressly passes upon the Federal question.

Thereupon this writ of error was brought, and, as the state court passed upon the Federal questions, this court has jurisdiction.

T] herefore, 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.

" `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

—provision granting state the right to appeal from intermediate court's award of new trial to defendant not ex post facto

—is apparent that the Legislature in enacting [the statute involved] `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 …

—the court held not ex post facto a statute permitting the State to appeal from the grant of a new trial in certain criminal cases.

In Mallett, the Court found no ex post facto violation where the new law allowed for higher court review of intermediate court decisions, even though the petitioner would have been entitled to a final intermediate court decision at the time of his crime.

And so controlling as to the existence of the Federal question is the fact that it was actually considered and decided by the state court, that it has been held, although the general rule is that the raising of a Federal question in a petition for rehearing in the highest court of the state is too late, yet, when a question is thus raised, and it is actually considered and decided by …

In analyzing this issue, the Court determined that "confusion" existed in the interpretation of the ex post facto clause because some prior cases stated that procedural changes would not violate the clause while other cases stated that even procedural changes might violate the clause if the changes deprived a defendant of `"substantial protections with which the existing …