State v. Cross

• Decision Date: 31 October 1858
• Citation: 27 Mo. 332
• Parties: THE STATE, Respondent, v. CROSS, Appellant.
• Court: Missouri Supreme Court

27 Mo. 332

THE STATE, Respondent,

v.CROSS, Appellant.

Supreme Court of Missouri.

October Term, 1858.

1. In a capital case, the defendant must be present at the time of the rendition of the verdict; and the record must affirmatively show his presence.

2. Drunkenness does not mitigate a crime; nor can it be taken in consideration by a jury in determining whether a person committing a homicide acted thereon willfully, deliberately and premeditatedly so as to constitute the crime committed murder in the first degree. (RICHARDSON, Judge, dissents from this doctrine, holding that, although a homicide committed willfully, deliberately and premeditatedly is in no way mitigated or excused by drunkeness, yet, since the quality and grade of the offense depend upon the state of mind of the accused at the time of the commission of the alleged crime, his drunkenness may be taken into consideration by the jury in determining whether the killing was done willfully, deliberately and premeditatedly.)

Appeal from Franklin Circuit Court.

C. Jones, for appellant, cited State v. Buckner, 25 Mo. 167; 1 Mo. 700; 3 Mo. 28; 6 Mo. 444; 8 Mo. 500; 9 Mo. 19; 12 Mo. 492; R. C. 1855, p. 1191; 1 Archb. C. P. 173; 1 Chitty, C. L. 636; State v. France, Overton, 424; 1 Wend. 91; 1 Ills. 109; 5 Yerg. 340; 11 Humph. 154; 4 id. 136; Pyrtle v. The State, 9 Humph. 663; Whart. on Hom. 369; 15 How. Prac. 557.

Mauro (circuit attorney), for the State.

NAPTON, Judge, delivered the opinion of the court.

The judgment in this case must be reversed, because the record does not show that the defendant was present in court when the verdict was rendered. The entire record of the proceedings of the court, in relation to this trial, on the day when the verdict was rendered, is as follows, to-wit: “And afterwards, to-wit: on the 6th day of said month, in the year aforesaid, and at the adjourned term aforesaid, the further following appears of record, to-wit: “State v. Nelson Cross. And the jurors aforesaid this day return into court, and upon their oaths do say: we, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment.” The authorities are very clear and entirely uniform, both the English and American cases, that the prisoner must be present in a capital case when the verdict is rendered, and the record must affirmatively show this. (Rex v. Geary, 2 Salk. 130; Dunn v. The Commonwealth, 6 Barr, 384; Hamilton v. Commonwealth, 4 Harris, 133; State v. France, Overton, 435; 1 Wend. 91.) It was so held, substantially, by this court, in The State v. Buckner, 25 Mo. 172. We do not infer, because the record shows the defendant was present in court on one day, that he was therefore present on the following day. In the case of Dunn v. The Commonwealth, 6 Barr, 384, the record showed that the prisoner was arraigned on the 11th of November, 1844, and it is stated on the record that on that day a jury came, who are named, and the record then proceeded: “Men duly summoned, returned and chosen by ballot, empannelled and sworn November 13, 1844, who, upon their oaths do say,” etc. The court held that the record did not show that the prisoner was present when the verdict was rendered, although the record did show that on the 11th the prisoner was arraigned and was, of course, before the court, and leaves no inference that he was even absent from the court-house from that day, when the jury was sworn, until the 13th, when the verdict came in. This, too, purported to be the record of several days' proceedings in one entry; here, the records of each day's proceedings are distinct, as they ought to be, but the record of the proceedings of the 6th day does not show that on that day the prisoner or his counsel was ever in court.

The following instruction was asked upon this trial by the counsel for the prisoner and refused: “That before the jury can find the prisoner guilty of murder in the first degree they must ascertain as a matter of fact that the accused was in such a state of mind as to do the act of killing willfully, deliberately and premeditatedly and maliciously, and any fact that will shed light upon the condition of his mind at the time of the killing may be looked into by them, and constitutes legitimate proof for their consideration; and among other facts, any state of drunkenness being proven, it is a legitimate subject of inquiry as to what influence such intoxication might have had upon the mind of the prisoner in the perpetration of the deed, and whether he was not, at the time of the killing, in such a state of mind, by reason of intoxication, as would be unfavorable to the commission of a crime requiring deliberation and premeditation.” The court gave the following instruction on this branch of the case: “The jury are further instructed that if the circumstances attending the killing, the weapon used, the nature and extent of the injury inflicted, and the amount of violence used, with all the other evidence in the case, satisfy them that Cross intended to kill McDonald, then the circumstance of his being drunk at the time is not sufficient to repel the inference of malice and premeditation arising out of such evidence, or to mitigate the offense from murder in the first degree to murder in the second degree, or any other less offense.”

The old and well established maxim of the common law is, that drunkenness does not mitigate a crime in any respect; on the contrary, that it rather is an aggravation. Insanity is a full and complete defense to a criminal charge; yet drunkenness is a species of insanity, and is attended with a temporary loss of reason and power of self-control. But drunkenness is voluntary; it is brought about by the act of the party, whilst insanity is an infliction of Providence, for which the party affected is not responsible. This is understood to be the basis of the distinction which the law has made between these two kinds of dementia, and is the principal reason why the rules of law have been settled so as to allow the one madness to constitute an exemption from legal responsibility, but deny to the other any mitigating qualities whatever. There are also obvious reasons of public policy why the law should be so established.

Some efforts have been made, of comparatively recent date--for the maxim we have quoted is as old as the common law itself--to qualify or to get rid of this ancient rule. Some very authoritative books on criminal law and some courts of great respectability, both in England and this country, have suggested interpretations and modifications of the axiom, tending, as we think, to subvert the principle itself for all practical purposes. Russell, in his work on crimes, says: “Though voluntary drunkenness cannot excuse from the commission of a...