State v. Phillips

• Citation: 24 Mo. 475
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 March 1857
• Parties: THE STATE, Respondent, v. PHILLIPS & ROSS, Appellants.

24 Mo. 475

THE STATE, Respondent,

v.PHILLIPS & ROSS, Appellants.

Supreme Court of Missouri.

March Term, 1857.

1. Under the Revised Code of 1855, where two defendants, jointly indicted, elect to be tried together, they are not entitled to a panel of more than thirty-six jurors.

2. A., B. and C. were jointly indicted for the murder of one D.--A. as principal in the first degree, B. and C. as aiders and abettors; A. was put upon his trial first and was acquitted; held, that as against B. and C. the question of the guilt or innocence of A. was still open; that his acquittal did not operate their discharge; that, though A. was the actual perpetrator of the homicide, the record of his acquittal would be inadmissible in evidence in favor of B. and C.

3. The proceedings upon an application for a change of venue in a criminal case, and the order of the court granting the same, are inadmissible in evidence against the accused.

4. Where evidence introduced is competent as against one of two defendants and incompetent as against the other, the party as against whom it is incompetent should, on the failure of the court of its own motion to instruct the jury as to its application and effect, move the court so to instruct; if the court refuse to grant such motion, it is error; if no such motion be made, there is no error.

5. The interval between the perpetration of a homicide and the flight of the perpetrator may be so short that there can arise no well grounded apprehension of personal violence; in such case evidence of excitement existing at the time of the arrest is incompetent, and may be properly ruled out when offered to repel any presumption of guilt arising from the fact of the flight.

6. Where the defense, for the purpose of discrediting a witness for the prosecution, causes to be read certain portions of depositions of such witness taken before the coroner on the inquest and before the committing magistrate, the prosecution may then read the whole of such depositions.

7. A., B. and C. were jointly indicted for the murder of D.--A. as principal in the first degree, the actual perpetrator--B. and C. as aiders and abettors. A. was put upon his trial first and acquitted; upon the trial of B. and C. the court, after instructing the jury as to the law of murder in the first degree, gave the following instruction: “If the jury believe from the evidence that A. willfully shot and killed the deceased without premeditation or without the intention to consummate by his act the death of the deceased, and that B. and C. were then and there present aiding, abetting and assisting A. to do the aforesaid act, without premeditation or malice aforethought on their part, then you will find the defendants guilty of murder in the second degree, and assess their punishment,” etc. Held, that this instruction was misleading and erroneous.

Appeal from Madison Circuit Court.

The facts are stated with sufficient fullness in the opinion of the court.

U. Wright, for appellants.

I. The venire was not a legal body, being deficient in number. (R. C. 1845, pp. 878, 9, Secs. 34 and 35, of Art. 6, of act regulating the practice and proceedings in criminal cases.) By the common law each defendant on a joint trial is entitled to the full number of his challenges. (2 Hale P. C. 263-8; 2 Hawk. P. C. Ch. 41, §9; Co. Litt. 156; United States v. Marchant, 12 Wheat. 580; Concklin's Treatise, 654; 1 Chitt. C. L. 536; 6 Ohio, 87.) Our statute gives this right.

II. The acquittal of Sullivan Phillips, the principal in law and fact, operated in law a discharge of the defendants from the indictment; and the court ought to have discharged them on the motion. It is granted that the acquittal of one charged as principal does not necessarily discharge those charged as aiders and abettors. It may be that, though charged as principal, he was acquitted, because he did not do the deed, and in fact had no knowledge of the transaction. It is granted also that one charged as principal may be found guilty as aiding and abetting, and vice versa. There would not be a variance in such case. But there can be no aider and abettor without a guilty principal. The acquittal of Sullivan Phillips, who killed Robert G. Watson, made it impossible that either of the defendants could criminally aid and abet in that act. No man can be charged criminally with aiding and abetting any act in itself lawful. (See Hunt v. Simonds, 19 Mo. 583; R. C. 1845, p. 397, Secs. 17 and 18.) Though the aider and abettor--or accessory at the fact--is called a principal in the second degree, and though this offense is punished as is that of the principal in the first degree, yet his guilt is dependent crime as essentially as that of the accessory before or after the fact. Without a guilty principal there can be no guilty accessory at the fact. The aider and abettor becomes a principal by making the act of the principal his own act. The analogy is perfect between the derivative guilt of accessories before and after the fact, and the dependent guilt of the aider and abettor. As the acquittal of the principal discharges accessories both before and after the fact, because the guilt of each hangs on the guilt of the principal, so the acquittal of the principal in the first degree (I mean the acquittal of the principal in fact-- the real party who did the deed--not he who is merely charged as such), for the same reason operates a discharge of the principal in the second degree. (See 1 Chit. C. L. 256; 1 Hale P. C. 438, 9; Foster, 349; Archb. C. P. 4; 2 Waterman's Archb. 249; 2 Hale, 223; 1 Leach, 360; 1 Wood. & Min. 231; 8 Carr. & Payne, 616; Wallis' Case, 3 Salk. 334; Rex v. Taylor & Shaw, 1 Leach, 398; Benson v. Offley & Lippon, 2 Show. 510; 3 Mod. 121; 3 Salk. 38; Rex v. Towle, Badder & Slater, Russ. & Ry. 314; 3 Price, 145; 1 Price Exch. 329.)

III. If any technical principle was in the way of the discharge on motion, the result was clearly attainable in the other mode adopted. The offer to introduce the record and proceedings of the trial and acquittal of the principal, Sullivan Phillips, had upon the indictment in this cause, with additional and explanatory facts, was improperly rejected. In this country and in England the record of the conviction of the principal is legal evidence on the trial of the accessory before and after the fact. (Foster C. L. 365; 2 Starkie Ev. 7; United States v. Wood, 3 Wheeler's Cases, 325; Smith's Case, 1 Leach, 288; Rosc. C. E. 174; 10 Pick. 477; 2 Bailey, 66; 2 Stalk. Co. 237.) So it is competent for the prosecution on a trial of a principal in the second degree to introduce the record of the conviction of the principal in the first degree. (Wharton on Hom. 162; Wharton's C. L. 119; 7 Georgia, 2; Wallis' Case, 3 Salk. 334.) So long as the doctrine is maintained by this court that parties jointly indicted, though tried separately, are not evidence for or against each other, it is manifest that the conviction or acquittal of the principal cannot be wholly res inter alios acta. It is only because they are parties to the record that the incompetency arises. The record of conviction is held not to be conclusive of the guilt of the principal. The reason is that the accessory is a party to the record, and by his relation must stand or fall with his principal; yet he has not had control of the trial of his principal--for that purpose he has had no day in court. He may traverse the finding, but the onus is upon him. The record of acquittal of the principal must, however, on every ground of authority, be conclusive against the State.

IV. It was error to permit the State to read to the jury the application for a change of venue from New Madrid county, and the affidavits of defendants in support of it.

V. The court erred in permitting Edmund Shelton to detail, as against Ross, what passed between himself and Presley Phillips touching the discharge of the witness as overseer of Phillips, and the reason therefor, a month or more before the homicide and in the absence of Ross; also what passed between witness and said Presley on the Monday before the homicide, neither Ross nor Sullivan Phillips being present.

VI. The court rejected proper evidence offered to rebut any presumption of guilt arising from the flight. A man may fly from anticipated violence, and he may show the subsequent excitement to justify the anticipation.

VII. It was manifest error to permit the State to read in rebuttal the whole of the evidence of Shultz, taken before the coroner and magistrate. The extent of the right was to read such portions of each document, and only such as explained, modified or qualified that portion of the witness' evidence which had been read by the defense, if such there were.

VIII. The instructions contained error. By the instruction touching murder in the second degree, murder is declared possible without malice aforethought.

H. A. Clover (circuit attorney), and J. W. Noell, for the State, cited Wharton on Hom. 160; State v. Fley, 2 Brevard, 338; The State v. Posey, 4 Strob. 127; Rex v. Taylor, 1 Leach, 398; Benson v. Offley, 2 Show. 570; 3 Mod. 121; Rex v. Wallis, Salk. 334; 3 Price, 145; 2 Marsh. 465; Archb. C. P. 6; 1 East. P. C. 351; 1 Hale, 437, 615; Plowd. 100 a; Rex v. Home, 1 Leach, 473; State v. Mair, 1 Coxe, 453; Foster, 551; Rex v. Borthwick, Dougl. 207; Rasinck's Case, 2 Virg. Ca. 356; Huffman v. Commonwealth, 9 Rand. 685; Rex v. Royce, 4 Burr. 207; 3 T. R. 105; Coalheavers' Case, 1 Leach, 76; Regina v. Tyler & Price, 8 Carr. & Pay. 616.

SCOTT, Judge, delivered the opinion of the court.

The first point made in this case is that the venire was not a legal body, being deficient in number. The indictment was for murder, and was preferred on the 15th day of January, 1856. The defendants elected to be tried separately; and, under the supposition that such would be the case, a venire for thirty-six jurors was issued and returned. Afterwards the defendants elected to be tried jointly, and ...