State v. Dunn

• Decision Date: 31 October 1883
• Citation: 80 Mo. 681
• Parties: THE STATE v. DUNN, Appellant.
• Court: Missouri Supreme Court

80 Mo. 681

THE STATE

v.DUNN, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Saline Criminal Court.--HON. J. E. RYLAND, Judge.

AFFIRMED.

Boyd & Sebree for appellant.

The discretion given the trial court by section 23 of article 2 of the constitution, to discharge a jury in a criminal cause “if the jury * * fail to render a verdict,” is a legal discretion, and must amount to a legal necessity, and the record should show that the circumstances under which the jury is discharged, are such as from which it appears impossible that a verdict can be had in a reasonable time, and without forcing a conclusion by hardship to the jury. The fact that the jury, after being out “one day,” (as in this case,) and then reporting that they are “unable to agree,” is not sufficient, unless the court itself is satisfied they cannot agree, and the record should show affirmatively that the court was so satisfied. Wharton Crim. Plead. and Prac., §§ 500, 504, 508; Bishop Crim. Law, (6 Ed.) vol. 1, §§ 1034, 1035, 1036, 1033, and note to § 1034; Cooley Const. Lim., p. 325, § 327; U. S. v. Harkell, 4 Wash. C. C. R. 409; U. S. v. Perez, 9 Wheat. 579; Comm. v. Cook, 6 Searg. & R. 577; Comm. v. Purchase, 2 Peck. 521; Ex parte McLaughlin, 41 Cal. 212; People v. Cage, 48 Cal. 323; O'Brian v. Comm., 9 Bush. 383; Teat v. State, 53 Miss. 439; Finch v. State, 53 Miss. 363; State v. Hays, 79 Mo. 600. The defendant was placed in jeopardy when the jury was sworn to try the cause at September term, 1882, the indictment being valid, and he having been duly arraigned, and plea of “not guilty” having been entered, and even if the discharge of the jury at September term was in the exercise of ““legal discretion,” the subsequent dismissal of the cause by the State's attorney at March term, 1883, operated as an acquittal. State v. Hays, 79 Mo. 600; Lee v. State, 26 Ark. 260; Bell v. State, 44 Ala. 393; State v. Callendine, 8 Iowa 288; Bishop Crim. Law, § 1013. The discretion given the court by the constitution extends to the discharge of the jury only. The additional words “and commit or bail the prisoner for trial at the next term of court, or if the state of business will permit, at same term,” give no discretion as to the subsequent proceedings of the court, but is both directory and mandatory, and at the same time a limitation on the power of the court. It cannot give a discretion as to committing or bailing the prisoner, because the constitution itself provides when a prisoner shall be bailed, and when he shall not be bailed. § 24, art. 2, Const. Mo.

The defendant had the constitutional right to trial at the September term, 1883, of the trial court, and the court having arbitrarily deprived him of that right, he should be discharged. Const., art. 2, § 22; Cooley's Const. Lim. 311; Ex parte Stanley, 4 Nev. It was the duty of the trial court in this case, to have given instructions as to manslaughter in the third and fourth degrees. The evidence shows that deceased made the first assault, and struck the first blow, and that the killing was by “a dangerous weapon,” and the court did instruct as to manslaughter in the second degree. See State v. Branstetter, 65 Mo. 152; State v. Edwards, 70 Mo. 480. The fourth, fifth, seventh and eighth instructions for the State, should not have been given, and the thirteenth asked by defendant should have been given. The affidavit of Edward F. Nichols was sufficient and competent to show misconduct of the jury, and should have been received for that purpose by the court. State v. Branstetter, 65 Mo. 148.

D. H. McIntyre, Attorney General, for the State.

The special plea in bar constituted no defense to a further prosecution. Cooley's Const. Lim., (3 Ed.) top p. 327; Const. 1875, art. 2, § 23; State v. Sims, 71 Mo. 538; R. S., § 1657. The instructions given for the State were proper. State v. Ellis, 74 Mo. 207, 220; State v. Talbott, 73 Mo. 357; State v. Curtis, 70 Mo. 594. Upon an appeal from a conviction of murder in the second degree, the court will not examine alleged errors in instructions for murder in the first degree. State v. Underwood, 57 Mo. 40; State v. Fritterer, 65 Mo. 442. There was no error in refusing the defendant's instructions numbered six, seven, twelve, thirteen and fourteen. There was no evidence authorizing the giving of an instruction on manslaughter in the third and fourth degrees. A verdict of the jury cannot be impeached by the affidavit of a juror; nor can this be done by the declarations of jurors to third persons. 75 Mo. 570; State v. Dieckman, 11 Mo. App. 538; Coker v. Hays, 16 Fla. 368; Drummond v. Leslie, 5 Blackf. (Ind.) 453; Clum v. Smith, 5 Hill 560; State v. Fox, 79 Mo. 109.

RAY, J.

The defendant was indicted at the November term, 1882, of the criminal court of Saline county, for the killing of Frank Edwards, on the 29th of August, 1882, in said county. The indictment was for murder in the second degree.

At the same term, as shown by the record, the defendant being duly arraigned, pleaded not guilty, and a jury being empanelled, the trial began on the 27th of that month, and, after hearing the evidence, the instructions of the court, and the argument of counsel, the jury on the 28th retired to consider of their verdict, and on the 29th returned into court, and being unable to agree, they were discharged by the court, and it was thereupon ordered by the court, that the bail of defendant be fixed at $2,000; whereupon court adjourned, until court in course.

So far as the record shows this action of the court, in discharging the jury and adjourning the court, was without objection on the part of defendant or his counsel; nor does it appear, that defendant demanded or asked another trial at that term. At the March term, 1883, the defendant was re-indicted for the same killing; this indictment charging murder in the first degree; whereupon, by order of the court, the first indictment was quashed, at the instance of the State's attorney. Thereupon, also, the defendant being arraigned on the new indictment, filed his motion to quash the same, which, was overruled by the court and excepted to by the defendant; the record, however, nowhere sets out this motion, or shows what it contained.

The defendant then filed special plea of former acquittal, on the ground of the discharge of the jury, and the continuance of the cause at the September term, 1882, and the quashing of the first indictment, at the March term, 1883, which plea was by the court overruled and excepted to by defendant; whereupon, to-wit, on the 22d of March, 1883, the defendant being arraigned on the new indictment, pleaded not guilty, and a jury being empanelled, the trial was commenced; and on the 24th, the evidence being in, the instructions of the court given, and the argument of counsel being concluded, the jury retired to consider of their verdict; and on the 27th, the jury being called, reported to the court that they were unable to agree upon a verdict; whereupon they were discharged by the court, to which order discharging said jury, the defendant objected; whereupon court adjourned until court in course. The record of this term of court, however, fails to show any bill of exceptions preserving any of the objections, or exceptions of the defendant to the various rulings of the court, at said term; nor was there any such bill, at the September term, 1882, as to the order and rulings of the court, at said prior term. At the September term, 1883, however, of said court, as shown by a formal bill of exceptions, duly filed, at said term, the defendant withdrew his plea of not guilty, in said cause, and thereupon filed a formal special plea in bar of “former acquittal,” setting up in detail, his said arraignment and plea of not guilty to said first indictment, the empanelling of said jury, the commencement of said trial, the discharge of said jury upon their being unable to agree upon a verdict, and continuance of the cause, as shown by the record of said September term, 1882; and, also, his said re-indictment for same offense at the March term of said court, for the year 1883; the quashing of said first indictment; his arraignment and plea to said second indictment, the empanelling of said second jury; the commencement of said second trial, and the discharge of said jury because of their inability to agree upon a verdict, and continuance of the cause as shown by the record of that term; by reason whereof, defendant says that under the constitution and laws of the State, he has been legally acquitted of the offense charged in said indictment, and that having thus once or twice been put in jeopardy by reason of the premises, he is now entitled to be discharged from all further prosecution therefor. In support of this special plea, the defendant offered in evidence the records of said court, whereupon, the court upon due consideration, overruled said plea; to which action of the court in overruling said plea, the defendant, in due time and manner, excepted and preserved the same by bill in due form. And the defendant failing, and refusing to plead further, the court thereupon entered for him the plea of not guilty.

A trial was thereupon had before a jury, resulting in a verdict of guilty of murder in the second degree, and assessing his punishment at ten years' imprisonment in the penitentiary, and judgment accordingly, from which the defendant, after an unsuccessful motion for new trial and in arrest, has appealed to this court.

A number of instructions were given and refused at the final trial, and duly excepted to, which, together with the evidence in the cause, as well as the motions for new trial and in arrest, as far as deemed material, will be noticed in the progress of this opinion.

The principal ground relied on for a reversal, and especially urged upon our attention, is the action of the court in overruling defendant's special plea in bar of former acquittal, above set out. The constitutional...