Ball v. United States

Decision Date25 May 1896
Docket NumberNo. 461,461
PartiesBALL et al. v. UNITED STATES
CourtU.S. Supreme Court

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 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 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 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 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 ground that the judgment upon the first indictment was quod eat sine die, which might be given as well for the insufficiency of the indictment as for the defendant's not being guilty of the offense; and Lord Hale was clearly of opinion that a judgment quod eat inde quietus could not go to the insufficiency of the indictment, but must go to the matter of the verdict, and would be a perpetual discharge. 3 Inst. 214; 2 Hale, P. C. 394, 395. And Mr. Starkie has observed: 'The doctrine expounded in this case does not appear to consist with the general principle on which the plea of autrefois acquit is said to depend, since an acquittal upon a special verdict would leave the defendant exposed to a second prosecution whenever a formal flaw could be detected in the first indictment at any subsequent period.' 1 Starkie, Cr. Pl. 320, note.

In the leading American case of People v. Barrett, 1 Johns. 66, while a majority of the court, consisting of Chief Justice Kent and Justices Thompson and Spencer, followed the English authorities, Justices Livingston and Tompkins strongly dissented; and their reasons were fully stated by Mr. Justice Livingston, who, after distinguishing cases in which upon the first trial there had been no general verdict of acquittal by the jury, but only a special verdict, upon which the court had discharged the defendant, as well as cases in which the defendant himself had suggested the imperfection in the first indictment, and thereupon obtained judgment in his favor, said: 'These defendants have availed themselves of no such imperfection, if any there were, nor has any judgment to that effect been pronounced. This case, in short, presents the novel and unheard-of spectacle of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect as a reason for a second trial, when it is not pretended that the merits were...

To continue reading

Request your trial
1049 cases
  • People v. Serrato
    • United States
    • California Supreme Court
    • July 25, 1973
    ...Fifth Amendment prohibition is not against being twice punished but against being twice put in jeopardy. (United States v. Ball (1896), 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300.) Since the trial court found these defendants guilty of a misdemeanor, rather than the felony for which the......
  • Shanea J., In re
    • United States
    • California Court of Appeals Court of Appeals
    • January 11, 1984
    ...of being twice put on trial rather than the possibility that an accused might be twice punished, United States v. Ball, (1895) 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300; see also Green v. United States, supra, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199, we can co......
  • Stone v. Superior Court
    • United States
    • California Supreme Court
    • June 1, 1982
    ...that no criminal defendant can be retried for an offense of which he has once been acquitted. (See United States v. Ball (1896) 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 35 L.Ed. 602; People v. Webb (1869) 38 Cal. 467, 479-480.) This basic protection was long ago codified in Penal Code sectio......
  • State v. Clark, No. A06-1476.
    • United States
    • Minnesota Supreme Court
    • August 28, 2008 trial proceedings. Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (citing United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964)). An exception to that general rule wa......
  • Request a trial to view additional results
8 books & journal articles
  • Navigating expert reliability: are criminal standards of certainty being left on the dock?
    • United States
    • Albany Law Review Vol. 64 No. 1, September 2000
    • September 22, 2000
    ...and admissibility of expert testimony) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)). (35) See United States v. Ball, 163 U.S. 662, 671 (1896) ("The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and the......
  • Populism, free speech, and the rule of law: the "fully informed" jury movement and its implications.
    • United States
    • Journal of Criminal Law and Criminology Vol. 88 No. 1, September 1997
    • September 22, 1997
    ...V ("[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life and limb"). (185) United States v. Ball, 163 U.S. 662, 671 (186) United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United States, 355 U.S. 184, 188 (1957)) (emphasis added). (187) ......
    • United States
    • Journal of Criminal Law and Criminology Vol. 111 No. 3, June 2021
    • June 22, 2021
    ...joinder of charges); Pointer v. United States, 151 U.S. 396 (1894); Pierce v. United States, 160 U.S. 355 (1896); United States v. Ball, 163 U.S. 662, 673 (1896); Stilson v. United States, 250 U.S. 583, 585-86 (65) FED. R. CRIM. P. 13. (66) Id. (67) See id. (68) FED. R. CRIM. P. 8(a). (69) ......
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume Two: Adjudication (CAP)
    • Invalid date
    ...Note 1, supra, at 1004-23; Westen & Drubel, Note 1, supra, at 122-55.[103] United States v. DiFrancesco, 449 U.S. 117, 129 (1980).[104] 163 U.S. 662 (1896).[105] Of course, an acquitted defendant may be prosecuted for a different offense. Sometimes, however, two different statutory offenses......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT