Mallison v. State

• Decision Date: 31 May 1840
• Citation: 6 Mo. 399
• Parties: MALLISON v. THE STATE.
• Court: Missouri Supreme Court

6 Mo. 399

MALLISON

v.THE STATE.

Supreme Court of Missouri.

May Term, 1840.

MCGIRK, J.

At the May term of the Circuit Court for St. Charles county, for the year 1839, Mallison was indicted for the murder of one Samuel L. Holmes. The indictment contains two counts for murder in the first degree, as defined by the statute. Which definition is thus: “Every murder which shall be committed by means of poisons, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.” Rev. Code, p. 167. To this indictment the defendant pleaded not guilty. On the trial of which indictment, the jury returned a verdict of not guilty of murder, but guilty of manslaughter in the second degree and assessed his punishment to four years in the penitentiary.

In the progress of the proceedings, the State was allowed a peremptory challenge. This was excepted to by the prisoner. The 2nd point of objection is, that the court gave oral instructions to the jury when, by the statute, it is said, it should have been in writing: and 3rd, the court refused to grant the prisoner a new trial: and 4th, the court refused to arrest the judgment. The 2nd, 3rd and 4th points are, in the arguments of counsel, again subdivided into several points. I will proceed to examine these four points in the order as stated above, with their subdivisions as they arise.

The first point to be considered is, did the court err in allowing the State a peremptory challenge. It is well known that, at common law, the prisoner was allowed a peremptory challenge, to be exercised at his will, pleasure, and even caprice. This was given in tenderness to human life. It is equally well settled that, by the same law, the crown was not allowed any such challenge, but submitted to the idea that, on questions of this sort, the King and government of England were elevated above likes, dislikes, whims and caprices regarding any, and all the subjects of the kingdom. 4 B. 353; 3 Bac. Abr. 762. It is not pretended by the State's counsel now, that the common law, as adopted in Missouri, gives the State any claim to the right. But the claim is placed on the 13th section of the jury law. Rev. Code, 1836, p. 343. The act is entitled: “An act concerning Grand and Petit Jurors.” The act provides for the summoning grand and petit jurors, describes their qualifications and duties in part. Then the 13th section declares: “In all civil and criminal trials by jury, either party may challenge, peremptorily, three jurors, and either party may require the officer to return eighteen in the first instance.” Then the 14th section authorizes the court to have summoned a special jury in civil cases. Messrs. Bates and Coalter admit that the section is broad enough, and large enough in its terms, to sustain the claim of the State. But they insist that the sole object of the act was not to enlarge the powers of the State, but only to provide a mode for obtaining jurors, as a general thing for the use of the court. They also rely on the Rev. Code, p. 489, § 3, where criminal practice is regulated, to sustain their view, which, they say, grants and limits the number of challenges to the defendant, and gives none to the State, and they rely on the 4th section as being particularly explanatory of the meaning of the law maker. This 4th section provides that, “there shall be summoned and returned in every criminal cause, a number of qualified jurors, equal to the number of peremptory challenges, and twelve in addition.” It is to be observed, that the first part of this act provides for the cases in criminal matters when there shall be jury trials, and who shall be jurors. The 3rd section provides and declares the number of peremptory challenges the defendant shall have in capital cases, which is twenty. It then points out the number to be allowed in other cases to defendants. The 4th section provides, that there shall be summoned and returned in every criminal cause, a number equal to the number of peremptory challenges, and twelve in addition. This statute makes no provision, nor does it say one word in regard to a peremptory challenge in behalf of the State. It was passed the 21st March, 1835. The act respecting jurors was passed March 17th, 1835. It is insisted, that the act of the 21st March, which is silent as to challenges in behalf of the State, being the last statute, repealed the statute of 17th March, and that the statute of 21st March having taken up the whole question of challenges, it is fairly to be supposed it was the intention of the Legislature that the State should have no peremptory challenge.

On this question my opinion is, that the last act does not repeal the first act. There is in it no repealing clause, and both statutes may well stand together. It is a rule of common law construction, that statutes ought to be so construed that all can stand; and that all the statutes, passed at the same session, are to be taken as one statute. There is also another rule, which is, that statutes made in pari materia are to be construed together. This rule I adopt in this case. It will then read in the first part thereof, that in all criminal cases (no matter of what nature, great or small), the prisoner, the criminal, as well as the State, shall have a peremptory challenge of three jurors. Then, by the latter part of the stutute, the subject is again taken up, and the Legislature more fully enlarge the rights of the prisoner criminal in capital and penitentiary cases, in both of which cases, the challenge without cause is extended to twenty; where the imprisonment is for life, not in the penitentiary, the challenge is twelve, in other cases to four. This all will stand with the first part of the statute except that, in cases not enumerated as above, the challenge is increased one: but, still, the challenge to the State is not by anything in the last act, in any way infringed. I, therefore, am of opinion that there is no error on this point.

The second point made is, that the court gave oral instructions to the jury, when by law all instructions in criminal cases must be in writing. It is enacted by the act of 13th of February, 1839, § 1st, That in no criminal case shall any court give to the jury any...