State v. Schoenwald

• Decision Date: 31 October 1860
• Citation: 31 Mo. 147
• Parties: THE STATE, Respondent, v. SCHOENWALD, Appellant.
• Court: Missouri Supreme Court

31 Mo. 147

THE STATE, Respondent,

v.SCHOENWALD, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. Where, in a criminal case, an application for a continuance on the ground of the absence of a material witness is overruled, the supreme court will not reverse the judgment rendered against the defendant unless he was injuriously affected by being deprived of the testimony of such absent witness.

2. To warrant the conviction of an accused person of murder, it is not necessary that the evidence in the case should exclude every possible hypothesis but the guilt of the defendant.

3. A court, in the trial of a criminal case, is not bound to instruct, as to the effect of a doubt in the minds of the jury as to the guilt of the accused, unless the evidence is such as will warrant it; the jury should not be coaxed into a doubt by instructions, when there is no foundation for it in the evidence. The accused can be entitled to an instruction relative to the consequence of a doubt as to his guilt on the whole evidence in the cause; he has no right to single out each material fact and to ask the court to direct the jury that if they have a doubt as to the existence of such fact they will acquit.

4. Where, in a criminal case, a witness wilfully swears falsely as to any material fact in evidence, the jury are at liberty to disregard and reject the whole of the testimony of such witness; they are not bound to do so.

5. Malice, in its legal sense, means a wrongful act done intentionally without just cause or excuse.

6. In the trial of a person indicted for murder, the court may, by suitable instructions, if the evidence will warrant it, direct the jury that the case, as made out by the evidence, is one of murder in the first degree, and, if the evidence is believed, will not warrant a verdict for murder in the second degree, or for any of the degrees of manslaughter; such an instruction is no invasion of the province of the jury, nor can it be regarded as a comment on the evidence.

7. It is the duty of a judge in the trial of a criminal case to instruct the jury on all the law arising in the case, and it is the duty of the jury to respect the instructions of the court on the law of the case, and to find the prisoner guilty or not guilty according to the law as delivered by the court and the evidence as they receive it from the witnesses under the direction of the court.

8. It is not necessary, in a criminal case, in the entry of record of the empanneling of the jury, that the oath taken by the jury should be formally set forth. An entry, after setting forth the coming of the circuit attorney representing the State, as also of the defendant, and the jury [naming them], proceeded as follows: “who being duly elected, tried and sworn the traverse between the parties aforesaid well and truly to try,” &c. Held, sufficient.

9. The defendant in a trial for murder should be present in person throughout the trial, and his presence should appear from the record; an entry of the proceedings on the second day of the trial in the following form: “Now again come as well the parties aforesaid as also the jurors,” &c., sufficiently shows the presence of the defendant.

Appeal from St. Louis Criminal Court.

The defendant Schoenwald was indicted for the murder of one John Lemuel Acres. The court gave the following among other instructions: “While I have thus defined murder in the first degree, the jury may remark that I fail to define murder in the second degree. I do this purposely, because, in my opinion, the case is not one of murder in the second degree, or one requiring instructions on the law of murder in the second degree. So of manslaughter in its various degrees. As murder is malicious killing, so manslaughter, generally speaking, has for its characteristic the existence of a heated state of the blood caused by a lawful provocation, or a combat suddenly ensuing between parties, no undue advantage being sought or taken on either side. The court omits, therefore, to instruct the jury upon the law of manslaughter in either of its degrees, because, upon the theory of a blow with a stone having been struck on the defendant by the deceased at or about the time of the stabbing, the court is of opinion that such act, if done by the deceased, does not constitute provocation on the part of the deceased toward defendant that can justly excuse or alleviate the act of stabbing under the circumstances as appearing from the evidence, even if the deceased struck defendant immediately at or before defendant stabbed him, and certainly not if the deceased struck defendant after defendant stabbed him, the court assuming in this connection that the act of stabbing was not done in self-defence. The above remarks are submitted to the jury hypothetically, that is, upon the hypothesis that it was the deceased who struck the defendant, and that he struck him at or about the time of the stabbing, and that it was defendant who stabbed deceased, but upon which matters, of course, the court expresses no opinion, but which are matters purely and absolutely for the consideration of the jury. The court, therefore, submits to the jury the consideration and determination simply of the proposition as to whether defendant is or is not guilty of the crime of murder in the first degree charged in the indictment.”

The defendant was found guilty of murder in the first degree.

Davis & Grammer, for appellant.

I. The court ought to have continued the cause upon the application of the defendant. The absent witness was a material witness. So the court erred in excluding part of the deposition of Mrs. Harketh. It disclosed the fact of a personal difficulty and fight of the deceased with another person than the defendant on the evening of the homicide. (See Crawford v. State, 12 Georg. 142.) The case was one of circumstantial evidence, in part at least. None of the witnesses say who inflicted the fatal blow. The court should have instructed the jury that if the evidence did not exclude every other possible hypothesis than that of the guilt of the defendant, they must find the defendant not guilty. (Wills on Cir. Ev. 149, 158; Burrill on Cir. Ev. 152; Bradford's Case, Celebrated Trials, 587; State v. Mathews, 20 Mo. 57.) The court ought to have given the instruction asked with respect to the effect of the false swearing of a witness. The law is not correctly stated in the instruction given on this subject. The word “material” as used by the court is improper; so the words “any other cause.” The court erred in refusing the third instruction asked. It was not included in the general instruction given concerning doubt. (16 Ill. 1; 12 Georg. 142.) It is erroneous to say that every unlawful act is a malicious act in the sense of that term as employed in the definition of murder, either at common law or by statute. No act which is not attended by the ordinary signs of an evil purpose, or manifest disregard of natural and social duty and obligation, is malicious. (2 West. Law Jour. 490; 7 C. & P. 499; 2 C. & R. 229; 9 Metc. 121; Foster, Crown Law, 138.) A slayer is presumed to be guilty of murder in the second degree only, unless there be proof that the killing was of deliberate, settled, wicked purpose. (See 14 Edw. III., ch. 4; 4 Bl'k Com. 195; Glanv. 1. 14, c. 3.) The court improperly charged the jury that “whenever it appears from the whole evidence that the crime was, at the moment, maliciously, deliberately or intentionally executed, the killing is murder in the first degree.” More than an intention to kill is necessary to constitute the crime of murder in the first degree. The court improperly commented on the evidence. The court was not expressing its opinion upon a question of law arising on the record, but upon the sufficiency of the facts proved to support a verdict of murder in the first degree. (See 18 Mo. 419; 12 Georg. 142; 17 Ala. 596; The State v. Ostrander, 30 Mo. 13; State v. Ross, 29 Mo. 49.) Upon an indictment for murder in the first degree the jury may return a verdict of murder in the second degree or of any of the degrees of manslaughter. (R. C. 1855, p. 640, art. 9, § 14; 5 Mo. 497; 6 Mo. 399, 240; State v. Ross, 29 Mo. 32; State v. Ostrander, 30 Mo. 13.) Granting that, in a proper case, the court may abstain from giving instructions as to the law of murder in the second degree, yet it is bound in every case not entirely free from doubt as to the degree of the offence, to give the law of the inferior degrees. This was a case not entirely free from doubt. (See 16 Ill. 1; 12 Geo. 142; Holder's case, 5 Georg. 101; Davis' case, 10 Georg. 441.) The constitution provides that the right of trial by jury shall remain inviolate; that in all criminal prosecutions the accused has the right to a speedy trial by an impartial jury of the vicinage; that he can not be deprived of life, liberty or property but by the judgment of his peers. The jury may convict of any inferior degrees of the offence charged. At the ancient common law, juries were judges of the law and the fact. The common law remained unaltered until an act of Parliament was passed taking away that right in the principality of Wales only. (Bushell's Case, 6 State Trials, p. ____.) It was the intention of the framers of the constitution of this state to preserve that right inviolate. (See 1 Bald. 99; 2 Wilson's Lec. 372; 3 Johns. Cas. 369; 1 Wheel. C. C. 108, 221; 3 Id. 97; 1 Park. C. R. 604, 595; 23 Verm. 14; 6 Shep. 346; 4 Blackf. 150; 5 Georg. 441; 10 Georg. 101.) The first case in which the right of an American jury to decide both the law and the fact in a criminal case is denied is United States v. Battiste, 2 Sumn. 343. The right was denied by Judge Story in his charge. He mistakenly supposed that the judge who presided at the trial could not award a new trial. (2 Sumn. 99.) Down to 1842 it seems to have been the opinion of the bench and bar in this state that juries were in criminal cases the judges of...