Ball v. United States, No. 461

CourtUnited States Supreme Court
Writing for the CourtGRAY
Citation163 U.S. 662,41 L.Ed. 300,16 S.Ct. 1192
Decision Date25 May 1896
Docket NumberNo. 461
PartiesBALL et al. v. UNITED STATES

163 U.S. 662
16 S.Ct. 1192
41 L.Ed. 300
BALL et al.

v.

UNITED STATES.

No. 461.
May 25, 1896.

Page 663

C. H. Smith, for plaintiffs in error.

Asst. Atty. Gen. Dickinson, for the United States.

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,

Page 664

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.

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

Page 665

justice ight appertain. Ball v. U. S., 140 U. S. 118, 136, 11 Sup. Ct. 761.

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

Page 666

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 Russ. Crimes (6th Ed.) 48. And the general tendency of opinion in this country has been to the same effect. 3 Greenl. Ev. § 35; 1 Bish. Cr. 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 and drank said potion'); a plea of not guilty; a special verdict finding that Ridley was killed by taking the poison, and that Vaux was not present when he took it; and a judgment rendered thereon that the poisoning of Ridley, and persuading him to take the poison, as found by the verdict, was not murder, and that the defendant go without day,—'eat sine die.' Upon a hearing on the plea of autrefois cquit, the court of queen's bench was of opinion that Vaux was a principal, although not present when Ridley took the poison, but that the indictment was insufficient, for not expressly alleging that Ridley drank the poison, and that, 'because the indictment in this case was insufficient, for this reason he was not legitimo

Page 667

modo acquietatus,' 'nor was the life of the party, in the judgment of the law, ever in jeopardy.'

Yet the decision in Vaux's Case was treated both by Lord Coke and by Lord Hale as maintainable only upon the...

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1026 practice notes
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...set aside." North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969) (citing, inter alia, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); footnote omitted). 15 Several theories have been advanced to rationalize retrial in these circumstance......
  • Tibbs v. Florida, No. 81-5114
    • United States
    • United States Supreme Court
    • June 7, 1982
    ...a judgment against him "may be tried anew . . . for the same offence of which he had been con- Page 40 victed." United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. This principle, that the Double Jeopardy Clause "imposes no limitations whatever upon the power to ret......
  • U.S. v. Starling, No. 77-2706
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1978
    ...It is now beyond dispute, for example, that reprosecution is not barred after a conviction is reversed on appeal, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), or on collateral attack, United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Lik......
  • Commonwealth v. Johnson, No. 40 EAP 2018
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 19, 2020
    ...United States v. Tateo , 377 U.S. 463, 465, 84 S. Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (citing, inter alia , Ball v. United States , 163 U.S. 662, 671-72, 16 S. Ct. 1192, 1195, 41 L.Ed. 300 (1896) ), unless the conviction is overturned due to evidentiary insufficiency. See Burks v. United ......
  • Request a trial to view additional results
1026 cases
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...set aside." North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969) (citing, inter alia, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); footnote omitted). 15 Several theories have been advanced to rationalize retrial in these circumstance......
  • Tibbs v. Florida, No. 81-5114
    • United States
    • United States Supreme Court
    • June 7, 1982
    ...a judgment against him "may be tried anew . . . for the same offence of which he had been con- Page 40 victed." United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. This principle, that the Double Jeopardy Clause "imposes no limitations whatever upon the power to ret......
  • U.S. v. Starling, No. 77-2706
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1978
    ...It is now beyond dispute, for example, that reprosecution is not barred after a conviction is reversed on appeal, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), or on collateral attack, United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Lik......
  • Commonwealth v. Johnson, No. 40 EAP 2018
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 19, 2020
    ...United States v. Tateo , 377 U.S. 463, 465, 84 S. Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (citing, inter alia , Ball v. United States , 163 U.S. 662, 671-72, 16 S. Ct. 1192, 1195, 41 L.Ed. 300 (1896) ), unless the conviction is overturned due to evidentiary insufficiency. See Burks v. United ......
  • Request a trial to view additional results

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