State v. Berry

• Citation: 298 S.W.2d 429
• Decision Date: 11 February 1957
• Docket Number: No. 44840,No. 2,44840,2
• Parties: STATE of Missouri, Respondent, v. Delbert BERRY, Appellant
• Court: United States State Supreme Court of Missouri

Page 429

298 S.W.2d 429

STATE of Missouri, Respondent, v. Delbert BERRY, Appellant.

No. 44840.

Supreme Court of Missouri, Division No. 2.

Feb. 11, 1957.

Cross & Cross, Lathrop, R. D. Farris, E. A. Farris, Richmond, D. A. Thompson, C. H. Sloan, Wilson D. Hill, Richmond, for appellant.

John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury has found that Delbert Berry was guilty of manslaughter when he shot Preston Hutchings on April 7, 1951, in Excelsior Springs, Clay County, Missouri. The jury was unable to agree on the punishment to be inflicted, however, and the trial court fixed his punishment at five years' imprisonment. V.A.M.S. Sec. 546.440. Upon this appeal, as in the trial of his case, the appellant is represented by several very capable, experienced lawyers and they have briefed and preserved for review the single question, Sup.Ct. Rule 28.02, 42 V.A.M.S.; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, of whether or not the present record and conviction is an instance of double jeopardy.

The record circumstances upon which the appellant relies as demonstrating double jeopardy are these: After Mr. Hutchings' death the appellant was charged first in magistrate court and thereafter, by information, in the Circuit Court of Clay County with murder in the first degree. The information was filed on May 9, 1951, and upon the appellant Berry's application a change of venue was granted to Carroll County, which together with Ray and Clay counties comprise the Seventh Judicial Circuit. V.A.M.S. Sec. 478.097. There, in September 1951, Berry was tried, but, in the language of the appellant's brief, 'At the conclusion of the evidence, instructions and arguments, the jury retired to consider a verdict, and being unable to agree upon one, (italics supplied) the trial Court Hon. James S. Rooney, discharged the jury, and continued the case for one week, for trial at the same September 1951 term; * * *.' Thereafter the case was continued 'from term to term' for more than two years and, finally, was set for trial on January 18, 1954. 'A venire of prospective jurors had been assembled, sworn and challenged, but the trial jury had not been sworn.' Whereupon, the prosecuting attorney of Clay County, over the objections of the appellant, made this oral entry in the record; 'State enters nolle pros.' Upon being questioned by defense counsel the prosecuting attorney announced that he had 'refiled this case' in the Magistrate Court of Clay County, he said, 'I have disposed of this case, which is in my discretion. It's a discretionary power which I do have as prosecuting attorney, and I have disposed of it.' After a preliminary hearing in the Magistrate Court of Clay County, in which the appellant timely urged his plea of double jeopardy, an information was again filed in the Circuit Court of Clay County, charging Berry with the murder of Hutchings on April 7, 1951. Upon Berry's application a change of venue was granted to Ray County where he was convicted, pleading throughout that his second trial and conviction violated due process and the prohibitions against double jeopardy under both the state and federal constitutions. Amendments V and XIV, Constitution of the United States; V.A.M.S.Const. Mo. Art. 1, Secs. 10, 19; V.A.M.S. Secs. 556.240, 556.260.

In part, the appellant's argument is based upon a misconception; the Missouri constitutional prohibition against double jeopardy applies only 'after being once acquitted by a jury.' Const. Mo. Art. 1, Sec. 19; State v. Linton, 283 Mo. 1, 222 S.W. 847; State v. Buente, 256 Mo. 227, 165 S.W. 340. Upon the first trial of this case the jurors were unable to agree upon a verdict and for that reason were discharged, but the 'hung jury' was not an 'acquittal' of the defendant, did not entitle him to a discharge, and he was not thereby placed in jeopardy within the meaning of the constitutional provision. State v. Copeland, 65 Mo. 497; State v. Dunn, 80 Mo. 681; 22 C.J.S., Criminal Law, Sec. 260, p. 398. This fact alone may be sufficient to dispose of the appellant's contention that his constitutional rights have been infringed. But the constitutional provision concerning double jeopardy also provides that 'if the jury fail to render a verdict the court may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the same or next term of court', Const. Mo. Art. 1, Sec. 19, and, therefore, it is urged, in the event of a 'hung jury,' that the subsequent procedure in a criminal case 'is limited solely to and confers upon the trial Court power only to put the defendant upon trial at the same or the next term of the Court' in the same case upon the same information or indictment. In the first place, as the appellant concedes, this procedure was precisely followed until the cause was finally set for trial on January 18, 1954. In the second place, this particular provision is not inconsistent with and does not specifically abolish other statutory and common-law procedure incident to the prosecution and trial of criminal causes.

There are exceptions to the constitutional provision, however, and, in addition, the common law of former jeopardy is in force, State v. Linton, supra and applies when the defendant has been 'acquitted or convicted', V.A.M.S. Sec. 556.240, and the question upon this record is whether the plea of former jeopardy falls within any of the exceptions, the statutes or the common law. One of the ancient powers incident to the office of prosecuting attorney is the power, at the appropriate time, to enter a nolle prosequi, State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, which, admittedly, the prosecuting attorney did when the case was called for trial on January 18, 1954. 'A venire' had been summoned but, unlike many of the cases relied upon, a trial jury had not been empaneled and sworn to try the cause. Compare: State v. Patterson, 116 Mo. 505, 22 S.W. 696; State v. Mason, 326 Mo. 973, 33 S.W.2d 895; State v. Linton, supra. The 'hung jury' was neither a conviction nor an acquittal and the entry of a nolle prosequi on January 18, 1954, was not an acquittal and, of course, did not place the defendant in jeopardy. State v....