State v. Mansfield

Citation41 Mo. 470
PartiesSTATE OF MISSOURI, Respondent, v. JOHN MANSFIELD, Appellant.
Decision Date31 October 1867
CourtUnited States State Supreme Court of Missouri

Appeal from Sixth District Court.

Dryden & Lindley, for appellant.

I. A defendant indicted for felony cannot be tried even with his own consent by a jury of less than twelve men. The reasons for this rule are well expressed in Concini v. State, 18 N. Y. 128; see also Neales v. State, 10 Mo. 498; State v. Moody, 24 Mo. 566.

If the defendant can consent to be tried by eleven jurors, he can consent to be tried by any less number, or by the court alone without a jury; but any such proceeding would surely be void as contrary to the provisions of §§ 1 & 2, ch. 213, R. C. 1865, which, by limiting the right of the defendant to consent to be tried without a jury to the case of a misdemeanor, evidently denies it in cases of felony. And in construing these sections of the statute reference should be made to the case of Neales v. State, 10 Mo. 498.

II. This court will look into the record and see if the verdict of the jury is warranted by the evidence.

The rule in civil cases, that this court will not reverse although the verdict is against the weight of evidence, does not apply to criminal trials of felony. This distinction is made by the Supreme Court of Tennessee, in Davis v. State, 2 Humph. 439. The court says, “The rule that this court will not grant a new trial upon the facts unless the jury shall appear to have been guilty of great rashness, does not apply to criminal cases. In such cases new trials have been constantly granted upon its conviction that the verdicts were not warranted by the proof”--Kirby v. State, 3 Humph. 289; Bidford v. State, 5 Humph. 552; 7 Id. 419 & 544. This rule seems to be recognized by this court in passing upon the sufficiency of evidence in the case of the State v. Ebert, appealed from St. Louis court of Criminal Correction, and heard before this court at the last term. But should the court hold otherwise, still this case comes fairly under the other branch of the rule, that this court will reverse when there is no evidence to warrant the verdict.” In the trial of this case in the Circuit Court the evidence against the defendant was altogether circumstantial, and the rule in such cases is that the jury cannot convict upon a mere preponderance of evidence, nor any weight of preponderating evidence, but the evidence must be such as to exclude every hypothesis but that of the guilt of the accused--3 Greenl. Ev. §§ 29 & 137. If the court therefore sees that the evidence does not exclude every reasonable hypothesis consistent with the innocence of the accused, it is equivalent to an entire failure of evidence in a civil case.

S. Voullaire, for appellant.

A jury trial must consist of twelve jurors--Brown v. State, 8 Blackf. 561; Concini v. People. 18 N. Y. (4 Smith) 128; 7 Abb. Pr. 271.

In felony cases the defendant must be personally present during the trial-- State v. Cross, 27 Mo. 332; Rose v. State, 20 Ohio, 31; State v. Buckner, 25 Mo. 167; State v. Braunschweig, 36 Mo. 397; State v. Schoenwald, 31 Mo. 147; G. S. of Mo. 1865, p. 850, § 15.

The court will examine the evidence in the cause, and grant a new trial if the evidence is not against the defendant--State v. Bird, 1 Mo. 585; State v. Packwood, 26 Mo. 340; State v. Simms, 2 Bailey, 29; Copeland v. State, 7 Humph 470; State v. Brosius, 39 Mo. 535; Webster College v. Tyler, 35 Mo. 268; Morris v. Barnes' Adm'r, 35 Mo. 412; Hart v. Leavenworth 11 Mo. 629.

This court will set aside the verdict in a case for the misconduct of a judge, attorney, and others--2 Whart. Crim. Law, §§ 3136 & 3157; 2 Hale P. C. 308 (Marg.); Whitney v. Whitman, 5 Mass. 405; Hix v. Drury, 5 Pick. 296; Fulwer v. Scott, Whart. Dig. 355.

B. B. Kingsburg, for respondent.

I. The verdict will not be set aside if there is any evidence to support it-- Dodge v. Brittain, 7 Meigs. (Tenn.) 84; England v. Burt, 7 Humph 399: and the rule applies as well to criminal as civil cases--McCune's case, 2 Rob. 771; Hill's case, 2 Grat. 594. Judge Scott, in State v. Anderson, 19 Mo. 241, says: “We know no distinction between civil and criminal cases. When the verdict of a jury comes here endorsed by the refusal of the court which tried the cause to grant a new trial, this court will not interfere on the ground that the evidence does not support the verdict. Jurors are the appropriate judges of the facts as the court is of the law.

II. The trial by a jury of eleven men, by consent of prisoner and counsel, is no such error as requires the interposition of this court. No objection was made in the Circuit Conrt, nor was such action alleged for error in the lower appellate court. It was a provision (the trial by twelve jurors) which the prisoner might waive--Commonw. v. Dailey. 12 Cush. (Mass.) 80; Murphy v. commonw., 1 Metc. (Ky.) 365; Tyree v. Commonw., 2 Id. 1; 1 Bish on Crim. Proc., ch. 25, § 422 et seq., § 762; Baxter v. The People, 3 Gilm. 368.

It being admitted that the accused may waive some right provided by law for his protection, the question arises whether the unanimity of a jury of twelve men--a principle which now prevails only in this country and England, and in those jurisdictions may be waived in civil cases, and recently often is waived--is such a right that he cannot waive it. This court has unquestionably observed the manner in which verdicts are forced from juries, often being only the expression, for the sake of being released from confinement, of an apparently agreed opinion on the guilt or innocence of the accused. (See opinion of Dr. Francis Lieber in October number of Law Register.) The case of the People v. Concini was one in which the prisoner was indicted for murder, and every provision in favorem vitæ on the trial of a man accused of a capital crime was strictly secured, and the case should not be held as authority in any except capital cases.

WAGNER, Judge, delivered the opinion of the court.

Whilst the law is firmly established in this State that it is not the province of this court in civil cases to weigh the evidence or disturb the discretion of the lower courts in maintaining or setting aside verdicts, it is equally well settled that in criminal cases we have never abandoned our right to interfere where the record shows that manifest injustice has been committed, or the verdict is not supported by the evidence. We will not say here that the verdict is wholly unsustained by the evidence, but the testimony is certainly very weak on which to base a conviction. There are circumstances, it is true, which go far to identify the accused with guilty participation in the burglary and larceny charged in the indictment, but it is doubtful whether these would have been sufficient to have produced the verdict had it not been for the action of the court which will be presently referred to.

One Harrold was jointly indicted with the defendant for the same offense, and previously convicted and sentenced in the same court, and on appeal the judgment was affirmed here. Upon the trial of the defendant, the court in giving instructions for the State gave the same identical instructions which had been given in Harrold's case, with the endorsement written thereon, “Instructions by court, State v. Harrold.” The counsel for the prosecution, in his closing address to the jury, was permitted to allude to the fact that Harrold had been convicted for the same offense, and that they were both in company when found directly after the crime was committed.

Now all this might well have exerted an injurious influence over the minds of the jury. The fact that Harrold and defendant were jointly indicted, and that the jury were acting under the identical instructions given in Harrold's case, would seem to warrant them in making the inference, that they had the sanction of the court for finding a verdict of guilty, without stopping to inquire whether the evidence was precisely the same in the two trials. In truth, the evidence was not the same, for there was no such evidence made to identify the defendant's tracks by measurement as there was in Harrold's case.

When the jury were called, twelve men were selected and impanneled to try the cause. On the next morning one of the jurors failed to answer, and it was stated that he was sick. It was then agreed, the prisoner consenting thereto, that the trial should proceed with eleven jurors, and accordingly the eleven jurors heard the cause and rendered the verdict. The question is now directly presented to the court for decision, whether upon an indictment for felony the defendant can waive his constitutional right to be tried by a legal jury of twelve men.

The 17th section of our declaration of Rights says that the right of trial by jury shall remain inviolate. Whenever there is a constitutional guaranty of the right of trial by jury, the jury must be composed of twelve men--Vaughn v. Scade, 30 Mo., 600, and authorities cited in the opinion; 2 Bennett & Heard's Lead Crim. Cas., 327, and note. A jury must consist of twelve men, no more, no less; no other number is known to the law, and they must appear upon the record to have rendered their verdict--Rex v. St. Michaels, 2 Blackst. 719; Dixon v. Richards, 2 How. 771; Jackson v. The State, 6 Blackf. 461; Brown v. The State, 8 Blackf. 561; 22 Ohio, 296. “The petit jury,” says Chitty, “must consist of precisely twelve, and is never to be more or less, and this fact it is necessary to insert upon the record. If therefore the number returned be less than twelve, any verdict must be ineffectual and the judgment will be reversed on error”--1 Chit. Crim. Law, 505.

It has been held that, in mere cases of misdemeanor, the Legislature might provide for their prosecution in a summary manner, notwithstanding the constitutional declaration, that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases...

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