Mary v. State

• Decision Date: 30 September 1837
• Citation: 5 Mo. 71
• Parties: MARY, A SLAVE, v. THE STATE.
• Court: Missouri Supreme Court

5 Mo. 71

MARY, A SLAVE,

v.THE STATE.

Supreme Court of Missouri.

September Term, 1837.

COLE, for Defendant. Mary, the above appellant, was indicted, tried and convicted of murder, at a special court, held for Crawford county, in August, 1837; and thereupon appealed her cause to this court. Upon an examination of the record, several important questions present themselves for the consideration of the appellante court. Important, because I conceive they are unsettled by any former adjudications; and because the life of a human being is dependent upon the issue. In order to the proposed examination I shall consider first, the jurisdiction assumed by the judge of the Circuit Court in this case. Secondly, the indictment, and the offense, as a statutory offense, of which the defendant stands convicted; and in the third and last place, whether it be legal or illegal, after the State had closed her evidence, and the accused hers, and the case had been submitted to the jury, and the jury adjourned over, upon the condition that the defendant would introduce no more evidence, for the State to introduce witnesses to the jury and examine them in the cause, some of whom had been examined before, and others not.

And first, as to the jurisdiction assumed by the Circuit Judge in this case. Our law (L. Mo. 159, § 48), provides that the judge of any Circuit Court may at any time hold a special term, for the trial of persons charged with crime and confined in jail, by making out a written order to that effect, and transmitting it to the clerk, who shall enter the same upon the records of the court. The law provides that the ordinary terms of the Circuit Court for Crawford county shall be held on the first Mondays of March, July, and November. Mo. L. 163, § 15. The trial in the above cause was had in August, as appears from the record, and assumes to be a special term of the Circuit Court, held for that purpose. It appears also, that the judge, at this special term, caused a grand jury to be impanneled for the purpose of finding the indictment upon which the appellant has been convicted and condemned to suffer death. In the first place, I assume the ground that the whole case, as presented by the record, was a case coram non judice, for the want of a legal order. There is a notice to the clerk of the Circuit Court of Crawford county, that a court will be held for the trial of the defendant, with a request or direction to him to cause a grand jury to be summoned, &c. But I ask, where is the written order that a court be held for the special purpose, as provided by law? There is no such order on the record, and there never was such an order made by the Circuit Judge; and if there was no legal order to hold the court that was held, then all the above proceedings are coram non judice, and void. If a special jurisdiction is given by law to do a particular thing, in a particular way, and under particular circumstances, in order to the lawful and unexceptionable exercise of this authority, the law giving the power must be strictly pursued. To authorize a judge of the Circuit Court to order a special term, a certain state of facts must pre-exist; first, there must be some person charged with crime, who is ready for trial, in a legal sense; and secondly, that person must be in jail. Now there is no order, as aforesaid, to this effect, but in the place of an order the judge notifies the clerk that a special term will be held, &c., and directing him to have a grand jury summoned, &c. The law does not authorize nor warrant any such proceeding. A legal order of a court, as I understand it, is a command that a particular thing be done, in the terms prescribed by law. The judge's notice to the clerk is merely intended to inform him that a particular thing will be done, and requiring his co-operation in its accomplishment. Again, whenever a certain state of facts exist, as has been stated before, the Judge of a Circuit Court is authorized by law to hold a special term of his court. Now the evidence of the existence of a lawful cause, and that the judge has taken upon himself the exercise of this authority, can only be proved in one way, and that is by the record evidence of a legal order, and there is no such in this record; then it follows that, although a court may have been held, yet, as there exists upon the record no lawful warrant, or authority of law for holding the same, the whole proceedings are a nullity. But there is another view of the subject, which is anomalous and striking. Our statute says, that a special term may be ordered for a trial, & c.; and that a notice shall be served on the person about to be tried, and circuit attorney, &c. Mo. L. 189, § 49. By what authority, I would respectfully ask, was a grand jury impanneled at this special term? By what authority does the circuit judge direct the clerk to cause a grand jury to be summoned, thus making the clerk his deputy in the discharge of his official duties? And by what authority does such a body, convened together in a mode unknown to the law, prefer an indictment jeopardizing the life of a human being? I confess, after an anxious search, I can find no law that will abet the exercise of this authority. Our statute authorizes the impanneling of a grand jury, other than at the regular terms of the Circuit Courts, but in one solitary case, and that is when the grand jury have been discharged, and an offense is committed thereafter during the sitting of the same court, that court may, by an order entered on their minutes, direct another grand jury to be impanneled for the purpose of inquiring into the offense. Mo. S. 480, § 13. But a special term of the Circuit Court is not ordered for the purpose of making an inquiry, through the intervention of a grand jury, whether or no a criminal offense has been committed by any one, but to try an offender for an offense that has been inquired into, and ascertained as far as was necessary in order to put the offender upon a travers jury, or in other words, upon his trial. “Trial” is a technical term well known to the law. Trials, per Pais. 6. 1 Ch. C. L. 407, 457; 4 B. C. 342; 1 Co. Lit. 155. The indictment is the accusation, and the trial is to ascertain, in a legal manner, the truth of it. The Legislature certainly did not mean, in the passage of the law authorizing special terms, that indictments or accusations, as well as trials, should be had at them. The statute says no such thing, and therefore intends no such thing. If the law did intend that indictments should be found at a special term, why is there a notice of trial to be given to the accused, as well as circuit attorney, the provisions of the law still harmonizing which gives the circuit judge power to order a term for the trial, &c? If the grand jury have to indict, it will often happen there will be no trial. But how does the order of court and law agree with such a state of things? The judge orders a term of the Circuit Court to be held for the trial, &c., and there has not been the preliminary inquiry by a grand jury to ascertain whether there is any person to be tried or not. This appears to me a great absurdity. I consider the notice required by law to be given to the accused, to also mean what it says; it is to warn him that his trial is at hand, and to prepare for it; so likewise of the circuit attorney. Such a notice would be, with submission, but a simple and unmeaning affair; if delivered to a person before indictment found, it would be incomprehensible, and wholly incompatible with the nature and functions of a grand jury, who are sworn to secrecy. It is humbly submitted, therefore, that the circuit judge has greatly erred, not only in the legal organization of the special term of the Circuit Court aforesaid, but has also erred in organizing a grand jury at said illegal term, in a manner and under an authority unknown to the law. Having thus disposed of the preliminary question, I shall now, in the second place, consider the indictment itself, and the offense as a statutory one.

An indictment is a written accusation of a crime, presented upon oath by a grand jury. Archb. C. Plead.; 1 Mo. L. 167, § 1. The indictment in this case, is founded upon the first section of the second article of our law with regard to crimes and punishments, which reads thus: “Every murder which shall be committed by means of poison, 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.” In order to sustain this indictment, it must be shown that it is in strict accordance with the following branch of the above law, because no other part in the section applies to the state of facts as set out in the indictment. The part of the section I refer to is in these words: “Or by any other kind of willful, deliberate and premeditated killing.” I do not see any particular exception to this indictment as an indictment at common law. The conclusion to be sure is contra forman statuti, but yet it might be good, for in every case of homicide, there was a presumption in virtue of that law, that the slayer was guilty of a felonious killing; and the onus devolved upon him to extenuate the offense, or prove his innocence. But not so in the case under consideration. All offenses, with the exception of some misdemeanors, are statutory, and the offense with which the appellant is charged, is an offense created and defined by statute. I consider the above indictment defective, because it does not pursue the statute. It contains two counts, and in neither of them is it averred that the acts charged to have been done by the accused, were done with intent to kill. The acts are charged to have been done willfully, maliciously, and feloniously; but neither of these words, nor all of them together, will cure this...