Fooxe v. State
| Decision Date | 31 May 1842 |
| Citation | 7 Mo. 502 |
| Parties | FOOXE v. THE STATE. |
| Court | Missouri Supreme Court |
APPEAL FROM THE ST. LOUIS CRIMINAL COURT.
HUDSON & HOLMES, for Appellant.
The appellant was indicted by the grand jury of St. Louis county for a felonious assault, and was tried and convicted. On the trial before the criminal court, the jury retired to consider of their verdict, and on the following day returned into court, and said they could not agree. The court inquired of the jury if they desired further instructions, or differed on a point of law: to which they responded in the negative. Before the jury left the court, the court, at the instance of the circuit attorney, instructed the jury, “that they had the right and authority to return a general verdict of guilty, without assessing any punishment.” This instruction was objected to by the prisoner's counsel, and exceptions taken to the opinion of the court, and its propriety appears to be the only question on which the opinion of this court is desired.
The act regulating Practice in Criminal Cases provides, that where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment, and render judgment accordingly.(a) This law imposes on the jury the duty of inflicting the punishment, nor has the court any right to fix the punishment, unless the jury disagree, or do not by their verdict inflict any punishment. But the court in this case, told the jury in substance, that this was no part of their duty, and they had authority to bring in a general verdict. Whereas the power of the court is merely contingent, not primary, and only to be exercised where a failure of duty, or a disagreement on the part of the jury requires its exercise. Judgment reversed.
(a). Rev. Stat. 1835, p. 493.
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State v. Howard
...and overruled the court pronounced judgment in accordance with the verdict and the punishment so assessed. Appellant relies upon Fooxe v. State, 7 Mo. 502, and State v. Gilbreath, 130 Mo. 500, 32 S.W. 1023, to support his contention that the action of the court was erroneous. Those cases we......
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The State v. Hamey
...to the adoption of the present Constitution, was to assess the punishment. The court could not require a general verdict of guilty. Fooxe v. State, 7 Mo. 502. section 1838, Revised Statutes 1899, is unconstitutional because it allows the jury to return into court a verdict of guilty only, a......
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State v. Howard
...and overruled the court pronounced judgment in accordance with the verdict and the punishment so assessed. Appellant relies upon Fooxe v. State, 7 Mo. 502, and v. Gilbreath, 130 Mo. 500, 32 S.W. 1023, to support his contention that the action of the court was erroneous. Those cases were con......
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State v. Burton
...where the jury fail to agree on the punishment, that the court is authorized to assess the punishment. Sec. 4093, R.S. 1939; State v. Fooxe, 7 Mo. 502; State v. Gilbreath, 32 S.W. 1023. (7) By giving instruction, the court invited the jury to disregard its duty in assessing defendant's puni......