State v. Ostrander

• Decision Date: 31 March 1860
• Citation: 30 Mo. 13
• Parties: THE STATE, Respondent, v. OSTRANDER, Appellant.
• Court: Missouri Supreme Court

30 Mo. 13

THE STATE, Respondent,

v.OSTRANDER, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. It is the right and privilege of a jury in a criminal prosecution to determine the facts submitted to them for decision without regard to and uninfluenced by the opinion the judge presiding at the trial may have as to the facts; the judge can not refuse to receive a verdict returned by the jury on the ground that it is manifestly against the evidence.

2. If the verdict returned by a jury in a criminal prosecution be sensible and responsive to the issue, it is the duty of the court to receive it and have it recorded.

3. An affirmative verdict of guilty of murder in the second degree is responsive to an indictment for murder in the first degree; and however strong may be the opinion of the judge that such a verdict is unwarranted by the evidence, and although no instructions whatever may have been given bearing upon the law of murder in the second degree, it would be improper for the judge to refuse to receive such a verdict and order it to be recorded.

Appeal from St. Louis Criminal Court.

The defendant, Levi Ostrander, was indicted for the murder of William McCoy. The defendant was put upon his trial upon the indictment, and the trial resulted as set forth below in the opinion of the court. The defendant was afterwards put upon his trial a second time and convicted of murder in the first degree.

U. & J. Wright, for appellant.

I. The court was under a perfect legal obligation to record the verdict rendered by the jury of murder in the second degree. (3 Murph. 571; 1 Hayw. 176.) The court illegally influenced the jury to defeat their verdict. The entire proceeding of the second trial was against the constitution. The court erred in refusing a new trial.

D. C. Woods, for appellant.

I. The verdict should have been received and recorded. It was responsive to the issue. (3 Murph. 571; 27 Mo. 380; 22 Mo. 319; 6 Mo. 399.) Where the verdict is merely informal the court may put it in proper form. (13 Mo. 209; 7 Johns. 32; 4 Metc. 354; 9 Dana, 260; 9 Port. 410; 5 Ired. 401; Gilp. 273; 7 Metc. 46.) A new trial will not be granted because the jury does not find as instructed in the law by the court. (1 Sm. & M. 400; 7 Leigh, 751; 18 Mo. 419). A conviction of murder in the second degree necessarily acquits of murder in the first degree. (27 Mo. 327; 28 Mo. 32.) The court improperly polled the jury of its own motion. (1 Mo. 392; 23 Mo. 579; 2 Gilm. 242; 7 Ired. 27.) “In conclusion, allow me to add that if ever, in the judicial history of Missouri, the court of last resort should interpose to save a fellow-creature from an ignominious death, it is the case at bar. Suffer not the penalty of death to attach to the last finding, for it would be in violation of constitutional right and at war with the great precepts of divine teaching. The first jury went upon the hypothesis that the defendant deserved punishment, but not the penalty of death, for there were many, many palliating circumstances. I regret that the repeated interposition of the lower court shook to ruins the high purposes and mandates of one who had not the manly courage and dignity of character to resist the frowns of the court, after a feeling of consciousness of having done right to his fellow-man. I hope this honorable court will pardon me for having spoken thus. Nothing but a high sense of duty drives me to the doing of that that the soul would spurn on ordinary occasions. I can not avoid the internal conviction that, if this man is executed, a great wrong will have been perpetrated. Hence I throw myself into the breach to prevent, if possible, the ignominy of such a crime in the ides of the third quarter of the nineteenth century. Duty tells me stop, for justice will be done, and my client saved from a felon's death. Could I leave him to abler hands or hearts more willing to do their fellow-men justice? Hence I relinquish the prisoner to the hands of the court.”

Mauro, (circuit attorney,) for the State.

I. The first trial was a mistrial. The record shows this and it can not be impeached. The foreman handed a paper purporting to be a verdict to the judge. It was not received however as such. The jury, being sent back with an additional and proper instruction, returned the same paper as a verdict, and being publicly interrogated, one of them dissented. Before a verdict is publicly received and recorded any juror may dissent therefrom. (Lawrence v. Stearns, 11 Pick. 501; 2 J. J. Marsh. 40; Perry v. Mays, 2 Baily, 354; 6 Johns. 68; 6 Dane's Abr. 234.) The court had the power, and it was its duty to direct the jury to reconsider their verdict before it was received in open court and recorded, if convinced that there was a palpable mistake. (8 Bac. Abr. 103, tit. G.; 2 Hale, P. C. 310; 3 Park. C. C. 552; 7 Johns. 32; 2 McCord, 209; 3 Murph. 571; 3 Binn. 514; Dyer, 204; 9 Shepley, 453; 4 Comst. 571.) The court was warranted in the belief that the jury had mistaken their powers and duties. It is the duty of the jury to take the law as propounded by the court. (4 Bac. Abr. 397; 7 Mo. 607; 6 Mo. 260; 2 Blach. 151; 2 McCork, 25; 1 Leigh, 588.) Where the evidence leaves no reasonable ground for doubt as to the grade of the offence, the court may direct the jury to find a general verdict of guilty or not guilty. (17 Georg. 194.) There was but one issue submitted to the jury--guilty or not guilty of murder in the first degree. The subject of murder in the second degree was not discussed by the court; the jury could not consider it. They could not legally know the punishment affixed to the crime, or even its existence in the criminal code. They did not pass upon the issue presented by the court. If the indictment had consisted of several counts charging different offences, and the court had withdrawn from the consideration of the jury all but one count, and the jury, disregarding the action of the court, had found a verdict upon one of the withdrawn counts, certainly the court would be authorized to invite the jury to rectify their mistake before the verdict was assented to and recorded in open court. Such is this case. There was no murder in the second degree in the case. The killing was intentional. (24 Mo. 128.) Had the court instructed upon that degree of homicide, it would have been error. (24 Mo. 475.) There was no lawful provocation; and consequently there was no manslaughter. The pretended verdict never was a verdict. It never did meet with the concurrence of twelve minds.

NAPTON, Judge, delivered the opinion of the court.

The only point arising on this record, which presents any difficulty, is based upon the action of the criminal court upon the verdict, or supposed verdict, of the jury at the first trial. The history of this proceeding will appear from the detailed statement certified by the judge in the bill of exceptions, the material parts of which are here inserted.

“And the jury retired to their room to consider of and concerning their verdict in the premises, and on the following day, the jury in the mean while being kept together, came into court, accompanied by the deputy marshal of the county who had in the interim had them in charge, and took their seats in the jury box; and the deputy marshal aforesaid handed to the court the instructions of the court given to the jury and a paper, which paper is in the words and figures following, to-wit: ‘We, the jury, in the case of The State v. Levi Ostrander, find him guilty of murder in the second degree, and assess his punishment to confinement in the state prison for the term of fifteen years. [[[[[Signed] D. M. Branch, foreman;’ and the court, having inspected the said paper, handed the same to Mr. Attorney for the State, and to the counsel for the defence for their inspection. And the court then gave the jury the following additional instruction: ‘Gentlemen--I instruct you that if you find the defendant wilfully and intentionally shot and killed deceased with a pistol, there can be no murder in the second degree in the case.’ [State v. Phillips & Ross, 24 Mo. 489; State v. Shultz, 25 Mo. 153.] And the court requested the jury to retire and deliberate further of and concerning their verdict in the premises. The defendant objected to the action of the court in sending the jury out again to deliberate upon a verdict they had already rendered, and denied that the jury could find another verdict in the case. Whereupon the jury retired to deliberate further; and after the lapse of some time again returned into court, and the foreman of the jury handed to the court the instructions of the court and the paper above set out signed D. M. Branch, foreman. Whereupon the court asked the jury whether they had yet been able to agree upon a verdict, and the foreman of the jury responded, not otherwise except as they had declared in the paper then held in the hands of the judge, being the paper signed D. M. Branch, foreman. Whereupon the court asked the foreman whether they agreed to render such verdict, referring to the paper signed D. M. Branch, foreman, and the said foreman responded ‘yes.’ Whereupon the court told the jury that it was desired by the counsel for the defence, and it would perhaps be more proper, that the verdict should be made responsive to the charge of murder in the first degree, and that their verdict should also declare that they found the defendant not guilty of murder in the first degree, but guilty of murder in the second degree, if such was their verdict; and, for the purpose of having the verdict conform to the charge, he would ask them if they found the defendant guilty or not guilty of the charge of murder in the first degree; and if they found him not guilty of the offence of murder in the first degree, then whether they found him guilty or not guilty of murder in the second degree; and if they found him guilty of murder in the second degree, would then have the verdict so recorded in due...