State v. Brooks

• Decision Date: 16 September 1887
• Parties: STATE v. BROOKS.
• Court: Missouri Supreme Court

5 S.W. 330

92 Mo. 542

STATE v. BROOKS.

Supreme Court of Missouri.

September 16, 1887.

For the majority opinion of the court and the former dissenting opinion by Judge SHERWOOD, see ante, 257.

SHERWOOD, J., (dissenting.)

I continue to dissent.

1. Hemmed in by the array of authorities I have cited, beginning with 7th Missouri, and coming down as late as State v. Palmer, 88 Mo. 568, all announcing the duty of the trial court, in criminal causes, to instruct the jury on all the law arising in the case; confronted, too, by the express mandate of the statute as contained in section 1908, that "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," — my associates abandon their former position, change their base, and attempt to take refuge behind the statute of Indiana, claiming that section 1908 was "borrowed from that state." This is a sheer assumption, as I will now proceed to show. I am informed by Judge KELLY, who was engaged upon the Revision of 1879, and to whom we are indebted for many valuable additions to our criminal procedure, that the statute in question was obtained from the state of Kansas, and this assertion is sustained by the following quotation from the statutes of that state:

"Sec. 227. The jury, being impaneled and sworn, the trial may proceed in the following order: First, the prosecuting attorney must state the case and offer the evidence in support of the prosecution; second, the defendant or his counsel may then state his defense, and offer evidence in support thereof; third, the parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original case; fourth, the court must charge the jury; fifth, unless the case be submitted without argument, the counsel for the state shall make the opening argument, the counsel for the defendant or defendants shall follow, and the counsel for the state shall conclude the argument."

"Sec. 236. The judge must charge the jury, in writing, and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are exclusive judges of all questions of fact." Sections 227, 236, pp. 856, 858, Gen. St. Kan. 1868; Comp. Laws Kan. 1879, §§ 4722, 4731.

It will be observed that section 1908, supra, of our statute, is a literal transcript of section 227 of the Kansas statute, except the fourth clause; for which is substituted section 236, supra, modified only to the extent required by our system of practice, and except the substitution in the fifth clause of the word "prosecution" for the word "state," and the addition of the words "or defendants."

In order to corroborate still further the position I have taken in reference to the source whence section 1908 is obtained, I here copy the section 1823 of the Indiana statute referred to in the majority opinion, but not copied:

"Sec. 1823. Order of trial. 248. The jury being impaneled and sworn, the trial shall proceed in the following order: First. The prosecuting attorney must state the case of the prosecution, and briefly state the evidence by which he expects to support it, and he shall then offer the evidence in support of the prosecution. Second. The defendant or his counsel may then state his defense, and offer evidence in support thereof. Third. The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. Fourth. When the evidence is concluded, the prosecuting attorney and the defendant or his counsel may, by agreement, in open court, submit the case to the court or jury trying the same, without argument. But if the case be not so submitted without argument, the prosecuting attorney shall have the opening and closing of the argument. But he shall disclose in the opening all the points relied on in the case; and, if in the closing he refer to any new point or fact not disclosed in the opening, the defendant or his counsel shall have the right of replying thereto, which reply shall close the argument in the case. If the prosecuting attorney shall refuse to open the argument, the defendant or his counsel may then argue the case. If the defendant or his counsel refuse to argue the case after the prosecuting attorney has made his opening argument, that shall be the only argument allowed in the case. Fifth. The court must then charge the jury; which charge, upon the request of the prosecuting attorney, the defendant or his counsel, made at any time before the commencement of the argument, shall be in writing, and the instructions therein contained numbered and signed by the court. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he present the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right also to determine the law. Sixth. If the prosecuting attorney, the defendant, or his counsel, desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered, and signed by the party or his attorney asking them, and delivered to the court before the commencement of the argument. Such charge or charges of the court, or any special instructions, when so written and given by the court, shall in no case be orally qualified, modified, or in any manner orally explained to the jury by the court." Section 1823, Rev. St. Ind. 1881, pp. 340, 341.

By making comparison of these sections, it will be further observed that the first clause of section 1908 is not a verbatim copy of the first clause of the Indiana statute. Let the respective statutes speak for themselves. I have italicized the sixth clause of section 1823, supra, no reference to which has been made in the opinion of the majority; and I desire to call special attention to it, as this clause is what creates the essential and striking difference between the statute of Indiana and the Kansas statute and our own. And the Indiana statute, as above quoted, is in substance the same as it was when the case of Rollins v. State, 62 Ind. 46, was decided. This is shown by the case of Powers v. State, 87 Ind. 144, (loc. cit. 153,) cited by the majority; so that, as the rulings of the Indiana courts, on which reliance is based by this court, were rulings made on the sixth clause of section 1823, a clause entirely omitted from the Kansas statute and from our own, it must needs follow that such rulings should have no weight in determining what our statute, section 1908, means. Our statute, with that sixth clause purposely omitted, when compared with the Indiana statute, is like the play of Hamlet with the part of Hamlet left out. And it is to be still further observed that the statutory regulations in Indiana in regard to instructions are the same in civil as in criminal cases. Rev. St. Ind. 1881, § 533; Revision 1876, § 324. For this reason it is that the supreme court of Indiana, when stating that a party who desires special instructions must ask them, refer indiscriminately to both civil and criminal cases. Powers v. State, 87 Ind. 144, and cases cited.

And in further proof that section 1908 was adopted from the statutes of Kansas, and with the judicial rulings of that state as part and parcel thereof, I cite the case of Craft v. State, 3 Kan. 450, where the supreme court, in passing upon that provision of their Criminal Code, that the court in charging the jury "must state to them all the matters of law necessary for their information in giving their verdict," said: "As the provision is plainly imperative, there is no necessity of attempting to sustain it by reason. It was error to omit to do so." This ruling was made in 1866, long before the ruling made in Rollins v. State, 62 Ind. supra, which was not made until May, 1878, and it is scarcely probable that case was published in time for the legislature of this state to be apprised of it in the winter of 1879.

But, for the purposes of this argument, I may freely grant that our section 1908 was indeed borrowed from the Indiana statute, and still this comparison will not support the ruling of the majority. On the contrary, the adoption of the Indiana statute, with the significant omission of the sixth clause of section 1823, which corresponds with the sixth clause of section 103 of the Revision of 1876, of that state, is equivalent, on the part of our legislature, to an absolute rejection by them of that sixth clause, and all judicial rulings based upon it. There is no escape from this conclusion. Besides all that, the opinion of the majority on this motion for rehearing omits all mention of, entirely ignores, section 1920 of our statute, which still remains in full force, and on which I have already commented. That section alone, if my construction of it is correct, should have compelled a reversal of the judgment; and this a fortiori must be the case, where the provisions of that section have been reinforced, and so strongly and conspicuously emphasized, by the mandatory provisions of section 1908. Before we had a statute on the subject in this state, it was declared to be "the duty of the judge of a criminal court to instruct the jury on all the law arising in the case." Hardy v. State, 7 Mo. 607. But now, where we have two sections of the statute requiring that duty to be performed, as well as many decisions of this court to the same effect, such duty is abolished, unless brought into being and existence by a request that such duty be performed. The result of all of which is that a clause in an Indiana stat...