State v. Jeffors

• Decision Date: 30 April 1877
• Citation: 64 Mo. 376
• Parties: STATE OF MISSOURI, Defendant in Error, v. WILSON J. JEFFORS, Plaintiff in Error.
• Court: Missouri Supreme Court

64 Mo. 376

STATE OF MISSOURI, Defendant in Error,

v.WILSON J. JEFFORS, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1877.

Error to Osage County Circuit Court.

Lay & Belch, for Plaintiff in Error, cited: Hide vs. Curling, 10 Mo. 359; Gibson vs. Chouteau's heirs, 45 Mo. 171; Morrison, Adm'r, vs. Dassman, 3 Cal. 255; Moody vs. Grant, 41 Miss. 565; West vs. Galloway, 33 Ala. 306; Davis vs. Ballard, 7 Mon. 604; Bondurant vs. Thompson, 15 Ala. 202; Kitchen vs. Moye, 17 Ala. 143; Comm. vs. Lester, 17 Serg. & R. 164; 17 Mo. 541; 48 Cal. 323; Cool. Const. Lim. 525, 526; 26 Ala. 155; 1 Stark. Cr. P. 262; 1 Ch. Cr. Law, 723; 1 Arch. Cr. Pr. & E., 186; 10 Yerg. 542; 23 Wend. 47.

J. L. Smith, Att'y Gen'l, for Defendant in Error, cited: Const.: Art. II, § 23; State vs. Clark, 18 Mo. 432; Whart. Crim Law, §§ 580-586; State vs. Matrassey, 47 Mo. 295; Wagn. Stat. 422, § 30.

NORTON, Judge, delivered the opinion of the court.

Defendant was indicted by the grand jury of Osage County for murder in the first degree, for shooting and killing one Ambrose Spencer in April, 1876. At the adjourned April term of the Circuit Court of said county held in June, defendant having been duly arraigned, and having pleaded “not guilty,” the trial of the cause by a jury was commenced on the 17th day of June and continued from day to day till the 22nd of June, when it was finally submitted to the jury, the record showing that on that day they retired to consider of their verdict. At the October Term, 1876, of said court, the defendant filed his motion, asking the court to dismiss the cause and discharge him; “because the records of the court show that at the April Term, 1876, said defendant was duly arraigned and tried before a qualified jury; that said jury was not discharged by any order of said court, or by and with the consent of the defendant.”

A motion was also filed on the part of the State asking the court to make an order requiring the clerk to amend the record and enter an order nunc pro tunc, showing that the jury had been discharged, being unable to agree upon a verdict, and the continuance of the cause.

The motion filed by the State was sustained and the motion of defendant was overruled, to which action of the court defendant excepted. The cause was then tried by a jury, resulting in the conviction of defendant for murder in the second degree, and the assessment of his punishment at imprisonment in the penitentiary for twelve years. A motion for new trial having been overruled, the cause is brought to this court on appeal.

The defendant seeks a reversal of the judgment on the grounds that the court erred in sustaining the motion on the part of the State, and directing the entry of a nunc pro tunc order showing the discharge of the jury at the April adjourned term of said court, and in overruling the motion of defendant for the dismissal of the cause and the discharge of defendant.

The only evidence offered in support of the motion for correcting and perfecting the record was the affidavit of the clerk of the court and prosecuting attorney, in which they state that the next day after the jury had retired to consider of their verdict, they came into court, and in the presence of the accused and his counsel, announced that they were unable to make a verdict, and thereupon they were discharged by the court and the cause was continued and defendant remanded to jail--all which the clerk omitted to record.

It does not appear that any entry of record was made, showing what became of the jury, other than the one which states “that after hearing the allegations, proof and pleadings as well on behalf of the State as on the part of defendant, they retired to consider of their verdict.

No entry appears to have been made either on the docket or calendar of the judge, or in the minute book of the clerk, in regard to the discharge of the jury, or the continuance of the cause.

When a clerk omits to make an entry which was ordered to be made, or makes a different entry from that which was ordered, the court may, at a subsequent term, amend the record so as to make it conform to the truth, provided some entry either in the minutes kept by the judge or clerk, or some paper filed in the cause and sustaining them, show the facts from which the amendment can be made. (Dunn vs. Raley, 58 Mo. 134.)

The power possessed by courts to make nunc pro tunc entries in a cause, after the end of a term, does not authorize the entry of an order which ought to have been made, but only those which were actually made, the evidence of which is preserved by some minute made at the time. Evidence aliunde cannot be resorted to for such purpose. To allow such entries to be made on facts resting in the mere memory of witnesses, and their statements as to what occurred, would be to establish a rule which would breed the utmost confusion and uncertainty, and make courts of record everything except what the law intends them to be. Neither can such entry be made after the end of the term upon the knowledge of the judge himself. During the term, which is in legal estimation but one day, everything is in fieri, and during that time the judge, of his own knowledge, may enter any judgment which has been pronounced. (Harrison vs. State, 10 Yerg. 542.) Inasmuch as the record was attempted to be amended upon the statement of witnesses and the knowledge of the judge, after the end of the term, the motion of plaintiff for a nunc pro tunc entry ought to have been overruled.

While this motion should have been overruled, it does not follow that the motion of defendant for his discharge should have been sustained. It is argued here that as defendant had once been put upon his trial, and as the jury to which his case had been committed had, after hearing the evidence and argument, retired by leave of court to consider of their verdict, and as the record is silent in regard to the disposition made of the jury and the case, the defendant is therefore entitled to his discharge upon the ground that he had thus once been put in jeopardy.

This question is not free from difficulty, and the effect of the discharge of a jury by the court because of their inability to agree upon a verdict, or of failure to discharge them at all, has given rise to considerable conflict of opinion, and in some of the States it has been held to be a bar to a second trial and to entitle the accused to his discharge; while in others, quite as numerous and respectable, a different conclusion has been reached. While it has been decided in Pennsylvania, Virginia, North Carolina, Tennessee, Indiana and California that the discharge of the jury in a criminal case except by defendant's consent, and in cases of such violent necessity as may be considered the act of God, will bar another trial, it has been otherwise held by the Supreme Court of the United States and the courts of Massachusetts, New York, Illinois, Kentucky and Mississippi, which have decided that the discharge of a jury by the court in the exercise of a sound discretion does not operate as a bar to a second trial. (1 Whart. Crim. Law, 573-590.) The conflicting views expressed by these...