State v. Ball

• Decision Date: 31 October 1858
• Citation: 27 Mo. 324
• Parties: THE STATE, Respondent, v. BALL, Appellant.
• Court: Missouri Supreme Court

27 Mo. 324

THE STATE, Respondent,

v.BALL, Appellant.

Supreme Court of Missouri.

October Term, 1858.

1. In the case of a conviction for an offense not capital, an omission to enter of record the allocution, or formal address of the judge to the prisoner, asking him if he has any thing to say why sentence should not be pronounced against him, is not of itself fatal.

2. In the entry of the empannelling of a jury, the jury were stated to be ““twelve good and lawful men,” and their names were given, but the same name was inserted twice, making thirteen in all; held, that this was merely a clerical error.

3. An affirmative verdict, in response to an indictment for murder in the first degree, of “guilty of murder in the second degree, in manner and form as charged,” etc., is by implication an acquittal of murder in the first degree, and, so long as it stands, it is a bar to any prosecution for the higher grade of offense.

Appeal from St. Charles Circuit Court.

The instructions numbered one and five, mentioned in the opinion of the court, are as follows: “1. If the jury believe from the testimony that Ball formed a determination in his own mind to kill Mark; that this determination was deliberately formed before the act of killing took place; and that after such determination was so formed, he did in pursuance thereof commit the act of killing in the manner charged in the indictment, then the prisoner is guilty of murder.”“5. If the jury believe from the evidence that the defendant had reasonable cause to apprehend a design on the part of the deceased to kill or rob him, or to do him some great personal injury, and had reasonable cause to believe he was in immediate danger of such design being accomplished, and he shot and killed deceased under these circumstances, you should acquit him on the ground of justifiable homicide; and in such case it makes no difference whether defendant was at that time in any real or actual danger or not.”

U. Wright, for appellant.

I. Illegal evidence was permitted to go to the jury against the defendant. The case made by the proof is not the case charged. The first instruction is not law. Every fact hypothetically stated in this instruction may be true, and yet no crime be committed, much less murder. The error is not cured by a separate and independent instruction touching justifiable homicide. (See State v. Phillips & Ross, 24 Mo. 491.) Self-defense includes both a design to kill and the deliberation necessary to make that design effectual. The verdict was not responsive to the charge in the indictment of murder in the first degree. (See Plummer's case, 6 Mo. 232; Watson's case, 5 Mo. 497; State v. O'Blenis, 24 Mo. 402; State v. Phillips & Ross, 24 Mo. 475; 9 Yerg. 333; 6 Humph. 410.) The jury was an illegal body, being thirteen in number. (3 S. & R. 237; 8 Blackf. 561; 2 Penning. 663.) The record is conclusive of the fact. It does not conclusively appear that the defendant was present when the judgment was rendered; nor does it appear that the defendant was asked before judgment whether he had any thing to say why judgment should not be executed. (2 Salk. 630; 3 Salk. 358; 4 Black. Comm. Appendix; 6 Barr, 384; 4 Harris, 129.)

Mauro (circuit attorney), for the State.

NAPTON, Judge, delivered the opinion of the court.

In capital cases the record should show that the prisoner was present when the verdict is rendered, and that he was asked, before judgment pronounced, if he has any thing to say why sentence of death should not be passed. In England this is considered necessary, even in clergyable felonies; but no decisions have been found in that country where the omission of the allocution alone is held fatal, except in cases of high treason. (1 Chitty C. L. 700; 2 Salk. 630; 3 Salk. 358.) We observe no case in this country where the judgment has been reversed for this clause alone, even where the case was a capital one, though in Hamilton v. The Commonwealth, 4 Harris, 133, this is one of the grounds of reversal. In that case it also appeared that the prisoner was not present when the verdict was rendered; or rather the record failed to show that he was present. Whether, under our practice, it would be necessary to reverse a judgment in a capital case because of the omission on the record of what is termed the allocution, or the formal address of the judge to the prisoner asking him why sentence should not be pronounced, when the record shows that he was present during the whole trial and at the rendition of the verdict and judgment, and that he filed his motion for a new trial and in arrest of judgment, it is not necessary in this case to determine. The reason given for the importance attached to this form in England is, that the revising court may see that the prisoner had an opportunity of moving in arrest, or of pleading a pardon. It would not be material here whether a pardon was produced before or after judgment, as no attainder or other such consequences result from a capital conviction here, which a pardon, even after judgment, may not remove. It is sufficient that the case under consideration is not a capital one, and the omission complained of is, therefore, unimportant.

The objection that the defendant is not shown to be present when the verdict and judgment were rendered, is not, in our opinion, sustained by the record. The entry is: “Now at this day appears the said plaintiff (the State) by attorney, and the said defendant was brought...