State v. Ross

• Citation: 29 Mo. 32
• Parties: THE STATE, Respondent, v. ROSS, Appellant
• Decision Date: 31 October 1859
• Court: United States State Supreme Court of Missouri

29 Mo. 32

THE STATE, Respondent,

v.ROSS, Appellant

Supreme Court of Missouri.

October Term, 1859.

1. Where three persons are jointly indicted for murder, one as principal in the first degree, the others as aiders and abettors, and the one indicted as principal in the first degree is put upon his trial first and acquitted, the record of his acquittal is inadmissible in evidence in favor of the others.

2. Where several persons are jointly indicted for murder, one as principal in the first degree, the others as aiders and abettors, each defendant may be tried as principal either in the first or second degree.

3. Where a person is indicted for murder in the first degree, and is put upon his trial and convicted of murder in the second degree, and a new trial is ordered at his instance, he can not legally be put upon his trial again upon the charge of murder in the first degree; he can be put upon his trial only upon the charge of murder in the second degree. (SCOTT, Judge, dissenting.)

4. To authorize the giving of instructions, there must be facts in evidence upon which to base them; nor should they contain comments upon the testimony.

5. In the case of a joint indictment of several for the joint commission of a crime, when once the conspiracy or combination is established, the act or declaration of one conspirator in the prosecution of the common enterprise is admissible in evidence against all. Acts or declarations of one, made after the common enterprise is ended, whether by accomplishment or abandonment, are not admissible in evidence against the others.

6. The rule requiring prima facie proof of the conspiracy or combination to be first made before the act or declarations of one conspirator or accomplice can be admitted against the others is not inflexible; the judge may, in his discretion, under peculiar and urgent circumstances, permit such acts and declarations to be introduced before sufficient proof is given to establish the conspiracy or combination.

7. The ninth section of the first article of the act concerning jurors (R. C. 1855, p. 910), which provides that “no exception to a juror on account of his citizenship, non-residence, state, or age, or other disability, shall be allowed after the jury are sworn,” does not apply to the objection that the juror had formed or delivered an opinion on the issue or any material fact to be tried; if the latter objection be made on a motion for a new trial, the court must entertain it.

Appeal from Madison Circuit Court.

Sullivan Phillips, Presley Phillips and John L. Ross were indicted for the murder of Robert G. Watson. The indictment contained only one count charging murder in the first degree, Sullivan Phillips being indicted as principal in the first degree, the others as aiders and abettors. Sullivan Phillips was put upon his trial first and acquitted. Presley Phillips and Ross were then put upon their trial and found guilty of murder in the second degree. This verdict was in the following form: “We, the jury, find the defendants, Presley Phillips and John L. Ross, guilty as principals in the second degree of murder in the second degree, and assess their punishment each at ten years' imprisonment in the penitentiary.” They appealed to the supreme court and the judgment against them was reversed. (See State v. Phillips and Ross, 24 Mo. 475.) There was a severance as to the defendants. Ross filed a plea setting up the former implied acquittal of murder in the first degree as a bar to any further prosecution for that grade of offence. The State demurred to this plea. The demurrer was sustained, and the defendant was put upon his trial upon the whole indictment. On the trial the defendant offered in evidence, as on the former trial of Phillips and Ross, the record of the acquittal of Sullivan Phillips, the actual perpetrator of the homicide. The court refused to admit the record.

The instructions given and refused are very voluminous. It is deemed unnecessary to set forth those that are not noticed in the opinions below. The court, among other instructions asked by the defendant, refused the following: “4. The jury are instructed that in determining whether there was or was not any conspiracy or common design of any sort between John L. Ross, Presley Phillips and Sullivan Phillips, or either of them, the jury have no right to consider any declarations which Presley may have made to Shelton on Monday, or to Bishop or Shultz on Wednesday, in the absence of John L. Ross; nor have the jury a right, in determining whether there was or was not such conspiracy or common design, to consider any declarations which may have been made by Presley Phillips to Shultz on the gallery, or to his slave, unless the jury are satisfied from the evidence that these two latter declarations of Presley Phillips were in the presence and hearing of John L. Ross. The jury can not consider any declarations of Presley Phillips made in the absence of John L. Ross in order to determine whether such conspiracy or common design existed. If the jury shall be satisfied from the other evidence in the cause that such conspiracy or common design existed before the act of killing, then and not till then do these declarations of Presley Phillips become evidence against John L. Ross. 5. If the jury shall find from the evidence in the cause that Sullivan Phillips killed Robert G. Watson, and that he did the act upon his own independent motion, and not in the execution of any conspiracy or common design to which John L. Ross was a party, they ought to acquit the defendant John L. Ross, no matter whether the act of Sullivan Phillips in killing said Watson was justifiable or not.”

The court gave the following instructions at its own instance: “5. If the jury believe that there was no common design between Presley Phillips, Sullivan Phillips and John L. Ross to kill Robert G. Watson nor to do him any great personal injury, and that there was no conspiracy or confederacy between them to go through the lands or enclosure of the deceased [?] of any or all opposition that might be made, and that Sullivan Phillips shot and killed Robert G. Watson, and that John L. Ross did not aid and assist or abet Sullivan Phillips to kill Robert G. Watson, and did not intentionally encourage Sullivan Phillips, by his presence, acts or declarations, to commit the act, then the jury ought to acquit John L. Ross of the charge of murder. Every person is presumed to intend the necessary consequences of his acts, but such presumption may be rebutted by other evidence. 6. By the term ‘common design’ is meant unity of intention between two or more persons to do an unlawful act, and may be established by circumstances or by direct evidence of an express agreement. 15. If the jury believe from the evidence in this cause that there was no common design between Presley Phillips, Sullivan Phillips and John L. Ross (at the time Sullivan Phillips shot and killed Watson) to go through the enclosure of Watson against all opposition, and that there was no common design between them to kill Watson, nor to do him any great personal injury, and that Sullivan Phillips shot and killed Watson, and that there was no common design between them to wilfully and maliciously pull down the fences of Watson, then John L. Ross is not to be affected by any conversation Presley Phillips may have had with Shelton, Bishop, or any other person, in the absence of John L. Ross; and under these circumstances the jury are to discard it from their consideration in determining the guilt or innocence of the accused; but it is not material that such common design existed at the time said conversations took place. If such common design existed at the time Watson was killed, the jury ought not to discard said conversations with Bishop and Shelton from their consideration in determining the guilt or innocence of the accused.”

The court gave no instructions as to the law of murder in the second degree. The jury found the following verdict: “We, the jury, find the defendant John L. Ross not guilty of murder in the first degree in manner and form as he stands charged in the indictment; but we do find him, John L. Ross, guilty of murder in the second degree in manner and form as he stands charged in the indictment, and we assess his punishment to ten years' imprisonment in the penitentiary.”

Among the reasons for a new trial was the following: that one of the jurors “prejudged the case, and concealed his opinions and prejudices from the court and defendant, and answered untruly to the court the questions put to him by the court when examined as to his qualifications as a juror; and because this prejudgment was unknown to defendant until after verdict, as may be more fully seen by reference to the affidavits of,” &c. The action of the court in respect to this ground for a new trial is sufficiently set forth in the opinion of the court.

U. & J. Wright, Lackland, Cline & Jamison, for appellant.

I. The court erred in sustaining the demurrer to the defendant's plea in bar. If the record did not show that defendant had been acquitted as alleged in the plea, the only proper mode of revising that question was a replication of nul tiel record.

II. The record of the acquittal of Sullivan was competent evidence to go to the jury for what it is worth. It establishes to all the world, as well strangers as parties and privies, that Sullivan Phillips was not guilty of any offence, and consequently that Ross could not be guilty as a principal in the second degree of a murder or other offence committed by Sullivan Phillips; which was the very theory and hypothesis of the prosecution. The record was not conclusive, because under the indictment the State might have established the guilt upon some other theory or hypothesis. The acquittal of Sullivan Phillips conclusively negatives the hypothesis that he committed any offence; consequently neither defendant nor any one else can be guilty as an...