State v. Snyder

• Decision Date: 05 November 1889
• Parties: STATE v. SNYDER.
• Court: Missouri Supreme Court

12 S.W. 369

98 Mo. 555

STATE v. SNYDER.

Supreme Court of Missouri.

November 5, 1889.

CRIMINAL LAW — AUTREFOIS CONVICT — BILL OF EXCEPTIONS.

1. Rev. St. Mo. 1879, § 1929, provides that, where the punishment is alternative, the jury may assess it, and the court shall render judgment accordingly, except as otherwise provided. Sections 1930-1933 provide that, where the punishment is assessed in excess of the highest penalty allowable, the court may reduce it to the highest penalty, and, where assessed below the lowest penalty, the court may raise it to the lowest allowable, but may in any case reduce a penalty fixed by a jury. Section 1965 provides that proceedings for new trials may be had on the motion of defendant. Held that, where the jury has assessed the minimum penalty, the court has no authority, on its own motion, to set aside the verdict, and order a new trial.

2. A new trial, after a verdict has been thus set aside, is in contravention of article 2, § 23, Bill of Rights Mo., providing that no person can "for the same offense be again put in jeopardy of life or liberty."

3. Though defendant cannot be said to have suffered strictly legal punishment by his imprisonment, yet, as his term would long ago have expired had the court sentenced him at the proper time, he is now entitled to discharge under the rule that "the default of the court shall not prejudice any one."

4. Where a bill of exceptions signed by the by-standers is allowed by the judge to be filed, but he certifies that it is untrue, and it is supported by affidavits, there being no counter-affidavits, it is a sufficient verification of the facts, within Rev. St. 1879, §§ 3638-3640, providing that, where the judge refuses to sign a bill of exceptions, it may be signed by three by-standers, and, if true, he shall allow it to be filed; but when he refuses to allow it to be filed, and certifies that it is untrue, either party may take not exceeding five affidavits as to its truth.

Error to criminal court, Jackson county.

The plaintiff in error, John Snyder, was tried for assault with intent to ravish. The jury returned a verdict of guilty, and assessed his punishment at six months' imprisonment in jail. The court, on its own motion, set the verdict aside, and ordered a new trial. He was again convicted, and the jury assessed his punishment at five years in the penitentiary. On the second trial, defendant pleaded former conviction, and, the plea being overruled, he excepted, and now brings error.

T. H. McNeil and A. W. Farrar, for plaintiff in error. John M. Wood, Atty. Gen., for defendant in error.

SHERWOOD, J.

The crime for which the defendant was tried was an assault with intent to ravish a female child of 11 years of age, the trial resulting in a verdict being returned by the jury in these words: "We, the jury, find the defendant guilty, and assess his punishment at six months in the county jail. P. H. PACKARD, Foreman." This verdict the court, of its own motion, set aside, and entered an order forever disqualifying the jurors who composed the panel from sitting as jurors in said court. Afterwards the defendant was again put upon trial, whereupon he pleaded his former conviction, proved it by the record, objected to any evidence being introduced by the state because of such former conviction; and upon this objection being overruled, and evidence for the state being introduced, elicited, by cross-examination of the state's witnesses, evidence tending to prove that defendant was being tried for the same offense of which he had formerly been convicted in the same court as aforesaid; but the trial court disregarded said plea of autrefois convict, and refused to instruct the jury upon that point, as asked so to do by the defendant, to the effect that, if the defendant had been tried and convicted at the preceding term of the court for the same offense for which he was now being tried, the jury should acquit him, but instructed the jury to the contrary of the instruction just mentioned. The result of this second trial, so called, was that the jury brought in a verdict of guilty against the defendant, assessing his punishment at imprisonment in the penitentiary for five years.

1. The first verdict rendered by the jury was in accordance with section 1263, Rev. St. 1879, upon which the indictment was based. Under that section, the jury, having an alternative or discretion as to the kind or extent of the punishment to be inflicted, had the right to assess and declare the punishment in their verdict, and for this reason could have greatly increased or considerably diminished such punishment, and it was the duty of the court to have rendered a judgment according to such verdict. Rev. St. 1879, § 1929. There are several instances where the court is authorized to fix the amount of punishment to be inflicted: Where the jury find a verdict of guilty, but fail to agree upon or declare the punishment, or assess a punishment not authorized by law; in which cases the court is to assess and to declare the punishment, etc. And where the punishment assessed by the jury is below, or exceeds, the legal limits; in the former of which two cases the court is to fix the punishment at the lowest limit prescribed by law, and in the latter the court disregards the excess of punishment inflicted, and sentences the defendant according to the highest limit of the law. And the court also has the power to diminish the punishment to be inflicted to the minimum provided by law, where the punishment assessed is greater than ought to have been inflicted. Id. §§ 1929-1933. These are the only instances known to our criminal law where a trial court can even apparently alter, lessen, or increase the punishment awarded to a prisoner by a jury. So that it will be seen that, aside from the instances enumerated, the prerogative of a jury in criminal causes as to finding verdicts of conviction is as impregnable in its exercise as is any given prerogative exercised by the trial court. Section 1965 of the statutes provides that "verdicts may be set aside, and new trials awarded, on the application of the defendant."

It was a maxim and practice of the common law that no man was to be brought into jeopardy more than once for the same offense. 4 Bl. Comm. 336. Our state constitution of 1820, art. 13, § 10, declared "that no person, after having been once acquitted by a jury, can for the same offense be again put in jeopardy of life or limb." And upon this provision it was ruled that an acquittal was a complete protection against any further action on the part of the state. State v. Spear, 6 Mo. 644; State v. Baker, 19 Mo. 683. In both of these cases, grossly erroneous instructions had been given for the defendant; but this was not allowed to change the result. See, also, State v. Cowan, 29 Mo. 332. Section 19, art. 1, Const. 1865, provided "that no person, after having been once acquitted by a jury, can for the same offense be again put in jeopardy of life or liberty." And...