163 U.S. 662 (1896), 461, United States v. Ball

Docket Nº:No. 461
Citation:163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300
Party Name:United States v. Ball
Case Date:May 25, 1896
Court:United States Supreme Court

Page 662

163 U.S. 662 (1896)

16 S.Ct. 1192, 41 L.Ed. 300

United States



No. 461

United States Supreme Court

May 25, 1896

Argued March 2, 1896




A general verdict of acquittal, in a court having jurisdiction of the cause and of the defendant, upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before verdict as insufficient in that respect, is a bar to a subsequent indictment against him for the same killing.

A verdict in a case submitted to the jury on Saturday may be received, and the jury discharged, on Sunday.

A defendant in a criminal case who procures a verdict and judgment against him to be set aside by the court may be tried anew upon the same or another indictment for the same offence of which he was convicted.

Whether defendants jointly indicted shall be tried together or separately rests in the sound discretion of the trial court.

After a witness in support of a prosecution has testified, on cross-examination, that he had, at his own expense, employed another attorney to assist the attorney for the government, the question "How much do you pay him?" may be excluded as immaterial.

Upon a trial for murder by shooting, in different parts of the body, with a gun loaded with buckshot, and after the introduction of conflicting evidence upon the question whether a gun found in the defendant's possession would scatter buckshot, it is within the discretion of the court to decline to permit the gun to be taken out and shot off in the presence of a deputy marshal in order to test how it threw such shot.

An indictment for murder which alleges that A, at a certain time and place, by shooting with a loaded gun, inflicted upon the body of B "a mortal wound, of which mortal wound the said B did languish, and, languishing, did then and there instantly die" unequivocally alleges that B died of the mortal wound inflicted by A, and that B died at the time and place at which the mortal wound was inflicted.

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The court is not bound as matter of law to set aide a verdict of guilty in capital case because no special oath was administered to the officer in charge of the jury if he was a deputy marshal who had previously taken the oath of office and no objection to his taking charge of the jury without a new oath was made at any stage of the trial, and the jury were duly cautioned by the court not to separate or to allow any other person to talk with them about the case, and there is nothing tending to show that the jury were exposed to any influence that might interfere with the impartial performance of their duties or prejudice the defendant.

This was an indictment for murder, returned at April term, 1891, of the Circuit Court of the United States for the Eastern District of Texas. The case is stated in the opinion.

GRAY, J., lead opinion

MR. JUSTICE GRAY delivered the opinion of the court.

At October term, 1889, of the Circuit Court of the United States for the Eastern district of Texas, the grand jury returned an indictment against Millard Fillmore Ball, John C. Ball, and Robert E Boutwell for the murder of William T. Box; alleging that the defendants, being white men and not Indians, on June 26, 1889, in Pickens county, in the Chickasaw Nation, in the Indian Territory, did unlawfully and feloniously, and with their malice aforethought, and with a deadly weapon, to-wit, a gun, held in their hands and loaded and charged with gunpowder and leaden balls, make an assault upon the body of William T. Box, and

did shoot off and discharge the contents of said gun in and upon the body of said William T. Box, inflicting thereon ten mortal wounds, of which mortal wounds the said William T. Box did languish, and, languishing, did die.

Upon that indictment, the three defendants were arraigned, and pleaded not guilty, and were tried together upon the issues so joined. The trial began on Wednesday, October 30,

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1889, and proceeded from day to day until Saturday, November 2, when the jury retired to consider of their verdict; and, no verdict having been returned at the usual hour of adjournment, the court was kept open to receive the verdict. On Sunday, November 3, 1889, the jury returned a verdict as follows:

We, the jury, find the defendants J. C. Ball and R. E. Boutwell guilty as charged in this indictment, and we find M. Fillmore Ball not guilty.

The court on the same day made the following order:

It is therefore considered by the court that the defendants J. C. Ball and R. E. Boutwell are guilty as charged in the indictment herein, and as found by the jury; and it is ordered that they be remanded to the custody of the marshal, and be by him committed to the county jail of Lamar county to await the judgment and sentence of the court. It is further ordered that the defendant Mr. F. Ball be discharged, and go hence without day.

Afterwards, at the same term, John C. Ball and Robert E. Boutwell were adjudged guilty, and sentenced to death, and sued out a writ of error from this court, and, in the assignment of errors filed by them in the Circuit Court, as appears by the record transmitted to this court in that case, specified, among other things, "because no legal indictment was returned into court against respondents," in that the indictment on which they were tried "nowhere alleges when and where said William T. Box died"; and,

for the errors stated and apparent upon the record herein, respondents pray that the judgment be reversed, and the cause remanded for a new trial.

And the brief then filed in their behalf concluded by submitting that the judgment ought to be reversed and the indictment dismissed.

[16 S.Ct. 1193] Upon that writ of error this Court, at October Term, 1890, held that that indictment, although sufficiently charging an assault, yet, by reason of failing to aver either the time or the place of the death of Box, was fatally defective, and would not support a sentence for murder, and therefore reversed the judgments against John C. Ball and Robert E. Boutwell and remanded the case, with directions to quash the indictment, and to take such further proceedings in relation to them as to

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justice might appertain. Ball v. United States, 140 U.S. 118, 136.

At April term, 1891, of the Circuit Court, that indictment was dismissed; and the grand jury returned against all three defendants a new indictment (being the one now before the court), like the former one, except that after charging the assault, with malice aforethought, and with a loaded gun, upon Box on June 26, 1889, in Pickens county, in the Indian Territory, it went on to charge that the three defendants

did then and there shoot off and discharge the contents of said gun at, in, and upon the body of said William T. Box, inflicting thereon a mortal wound, of which mortal wound the said William T. Box did languish, and languishing did then and there instantly die, and did then and there die within a year and a day after the infliction of the said mortal wound as aforesaid.

To this indictment the defendant Millard F. Ball filed a plea of former jeopardy and former acquittal, relying upon the trial, the verdict of acquittal, and the order of the court for his discharge, upon the former indictment, a certified copy of the record of the proceedings upon which was annexed to, and made part of, his plea.

The defendants John C. Ball and Boutwell filed a plea of former jeopardy, by reason of their trial and conviction upon the former indictment, and of the dismissal of that indictment.

Both those pleas were overruled by the court, and the three defendants then severally pleaded not guilty.

At the trial. it appeared that William T. Box was killed on June 26, 1889. The defendants offered in evidence the record of the proceedings upon the former indictment, and it was admitted by all parties that the offense charged in the former indictment and that charged in the present indictment was one and the same transaction and offense, to-wit, the killing of Box by the three defendants; that the defendants in the two indictments were the same persons; and that no writ of error was ever sued out upon the judgment or order entered upon the former indictment, as to Millard F. Ball.

The Circuit Court, among other instructions, instructed the jury to find against both pleas of former jeopardy, because

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this court had decided that the former indictment was insufficient as an indictment for murder. The jury returned a verdict of guilty of murder against all three defendants. Each of them was adjudged guilty, accordingly, and sentenced to death, and thereupon they sued out this writ of error.

The first matter to be considered is the effect of the acquittal of Millard F. Ball by the jury upon the trial of the former indictment.

In England, an acquittal upon an indictment so defective that if it had been objected to at the trial, or by motion in arrest of judgment, or by writ of error, it would not have supported any conviction or sentence, has generally been considered as insufficient to support a plea of former acquittal. 2 Hale, P.C. 248, 394; 2 Hawk. P.C. c. 35, § 8; 1 Starkie, Cr.Pl. (2d Ed.) 320; 1 Chit.Cr.Law, 458; Archb.Cr.Pl. & Ev. (19th Ed.) 143; 1 Russell on Crimes (6th Ed.) 48. And the general tendency of opinion in this country has been to the same effect. 3 Greenl.Ev. § 35; 1 Bishop's Crim.Law, § 1021, and cases there cited.

The foundation of that doctrine is Vaux's Case, 4 Coke 44, in which William Vaux, being duly indicted for the murder of Nicholas Ridley by persuading him to drink a poisoned potion, pleaded a former acquittal, the record of which set forth a similar indictment alleging that Ridley, not knowing that the potion was poisoned, but confiding in the persuasion of Vaux, took and drank (without saying "took...

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