State v. Bevins

• Decision Date: 17 November 1931
• Citation: 43 S.W.2d 432,328 Mo. 1046
• Parties: The State v. Rhode Bevins, Appellant
• Court: Missouri Supreme Court

43 S.W.2d 432

328 Mo. 1046

The State v. Rhode Bevins, Appellant

Supreme Court of Missouri

November 17, 1931

Appeal from Howell Circuit Court; Hon. W. H. D. Green Judge.

Reversed and remanded.

Stratton Shartel, Attorney-General, and Henry H. Stern Assistant Attorney-General, for respondent.

(1) What is the meaning of Sec. 3681, R. S. 1929, wherein it states "whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict?" Is an instruction that (under the provisions of Sec. 4457, R. S. 1929) the minimum term of imprisonment in the penitentiary is two years an instruction upon a "question of law arising in the case which is necessary for their information in giving their verdict?" State v. Hamey, 168 Mo. 167; State v. Gurnee, 309 Mo. 6, 274 S.W. 58; State v. Murray, 316 Mo. 31, 292 S.W. 434; State v London, 295 S.W. 547; State v. Lambert, 318 Mo. 705, 300 S.W. 707; State v. Conrad, 322 Mo. 246, 14 S.W.2d 608. (2) Cases on this point in Division Two are all distinguishable. State v. Duddrear, 309 Mo. 1, 274 S.W. 360; State v. Lambert, supra; State v. Craft, 23 S.W.2d 183. (3) The case of State v. Linney, 52 Mo. 40, must be overruled if the opinion in Division Two is to be adopted.

Cooley, C. Westhues, C., concurs; Fitzsimmons, C., dissents.

OPINION

COOLEY

By information in the Circuit Court of Howell County it was charged that the defendant, Rhode Bevins, on a date named, unlawfully, wilfully and feloniously did have upon and about his person a certain firearm, to-wit, a revolving pistol, while the said Rhode Bevins was intoxicated. The prosecution was under Section 3275, Revised Statutes 1919, now Section 4029, Revised Statutes 1929, which, among other things, makes it an offense for any person to have "in his possession" any firearm when intoxicated. Defendant was found guilty by the jury, and was by the court sentenced to two years' imprisonment in the penitentiary, and he appealed.

In the view we take of the case it is unnecessary to refer to the evidence further than to say that it was sufficient to sustain the verdict of guilty. The information was not assailed and we regard it as sufficient. We find no substantial errors in the record except those to be hereinafter noted.

The jury returned the following verdict:

"We, the Jury, find the Defendant, Rhode Bevins guilty as charged in the Information and we do assess his punishment at one year in the State Penitentiary."

The record shows that when the verdict was returned the following occurred:

By the Court: "Gentlemen, the verdict you rendered in fixing the punishment at one year in the penitentiary, is that your verdict? So say you all?"

The jurors answered in the affirmative and the court at once discharged the jury. The defendant objected and excepted to the verdict. This record entry then appears:

"Whereupon the court by reason of the verdict being for less than two years, to-wit, one year, does assess the punishment at two years' imprisonment in the penitentiary."

Defendant objected and excepted to that action of the court.

The court had given three instructions. No. 1 declared that it was the duty of the jury to receive the court's instructions as the law of the case, hypothesized the facts necessary to be found in order to convict, and directed the jury, in case of conviction, to assess defendant's punishment "at imprisonment in the state penitentiary not exceeding two years or by a fine of not less than $ 100 nor more than $ 1000, or by imprisonment in the county jail not less than fifty days nor more than one year, or by both such fine and imprisonment." The other two instructions dealt with credibility of witnesses, presumption of innocence and reasonable doubt, and need not be noticed. No instruction was given informing the jury that the minimum imprisonment in the penitentiary that could be assessed was two years, which is the minimum term in the penitentiary that can be given in any case. [Sec. 4457, R. S. 1929.]

In due time defendant filed his motion for new trial, wherein, among other things, he charged error in that the court failed to instruct the jury that two years was the least imprisonment in the penitentiary that could be assessed and in discharging the jury without instructing them to that effect "instead of instructing the jury as the court did in effect that they could give the defendant any time in the penitentiary not to exceed two years." It is also alleged that the court erred in increasing the punishment as fixed by the jury.

Appellant has filed no brief and is not represented by counsel in this court. We look to his motion for new trial for alleged errors of which he complains. It does not appear from the bill of exceptions that he objected or saved exceptions to the giving of the instructions which were given or that he requested any instructions or excepted at the time to the court's failure to instruct on all the law of the case. It is the duty of the court, however, without request, to instruct the jury upon all questions of law "necessary for their information in giving their verdict." [Sec. 3681, R. S. 1929.] And it is now settled that a defendant in a criminal case is entitled to have considered on appeal his contention that the court failed so to instruct where the omission was of an essential part of the law of the case necessary for the proper information of the jury, if in his motion for new trial he has properly called the trial court's attention to the alleged omission, even though he did not request an instruction on the subject, nor except, at the time, to the court's failure to give one. [State v. Burrell, 298 Mo. 672, 252 S.W. 709; State v. Gurnee, 309 Mo. 6, 14, 274 S.W. 58; State v. Harrison (Mo.), 24 S.W.2d 985.] In this case appellant in his motion for new trial sufficiently pointed out the failure of the court to inform the jury that the least (as well as in this case the greatest) term of imprisonment in the penitentiary that could be assessed was two years. For reasons which will be apparent as we proceed we regard the omission as a failure to instruct on a part of the law necessary for the information of the jury in giving their verdict and therefore under the rule above stated the error is presented for review on this appeal.

Our code of criminal law and procedure contemplates that on trial to a jury the jury shall determine and assess the punishment within the limits prescribed by the statute, except where the statute expressly authorizes the court to do so or where by statute a specific punishment is fixed with no alternative.

Section 3703, Revised Statutes 1929, provides that "where by law there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted the jury may assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided." (Italics ours.) The next four sections designate the exceptions.

By Section 3704 it is provided that where the jury agree upon a verdict of guilty but fail to agree upon the punishment to be inflicted or do not declare such punishment by their verdict, and where the jury find a verdict of guilty and assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment and render judgment accordingly.

By Section 3705 it is provided that if the jury assess a punishment, either of imprisonment or fine, below the limit prescribed for the offense, the court shall pronounce sentence and render judgment according to the lowest limit prescribed by law in such case.

Section 3706 provides that if the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.

By Section 3707 the court is authorized to reduce the extent or duration of the punishment assessed by the jury if in its opinion the conviction is proper but the punishment assessed is greater than should be inflicted under the circumstances.

It will be noticed that Section 3703 says that the jury "may" assess and declare the punishment and the court "shall" render judgment accordingly, "except as hereinafter provided." The word "may" is interpreted to mean "shall" when referring "to a power given to public officers, and which concerns the public interest and the rights of third persons, who have a claim de jure that the power shall be exercised in this manner." [State ex rel. Vernon County v. King, 136 Mo. 309, 319, 36 S.W. 681 and 38 S.W. 80.] But without resort to that rule of construction we think it apparent that the purpose of the foregoing statutory provisions was to place upon the jury the duty, not merely to grant the privilege, of determining the punishment if they can agree thereon and to deny to the court authority to determine the punishment except where the jury has failed to perform the duty primarily devolving upon it, giving the court the further power, in its discretion, of reducing, but not increasing, a punishment legally assessed by the jury. Correlatively, a defendant would have the right to have the jury perform the duty so imposed by the statute, unless we assume that the duty was imposed for the sole benefit of the State with no concern for the defendant, which we think should not be assumed. Of course the provision cannot be regarded as a privilege granted for the benefit of the jury.

Not only do the statutory provisions referred to clearly point to...