State v. Upton

• Decision Date: 31 January 1855
• Parties: THE STATE, Respondent, v. UPTON, Appellant.
• Court: Missouri Supreme Court

20 Mo. 397

THE STATE, Respondent,

v.UPTON, Appellant.

Supreme Court of Missouri.

January Term, 1855.

1. A verdict will not, it seems, be set aside because the jury used intoxicating liquor in their retirement, unless it appears that it was supplied from an improper source, or affected the verdict.

2. Jurors are the exclusive judges of the weight of testimony.

3. Upon an indictment for murder, a verdict of “guilty in manner and form as charged in the indictment,” will not support a judgment. The degree must be specified, under the statute.

Appeal from Ripley Circuit Court.

J. W. Morrow, for appellant, among other points, relied upon the following:

I. The instruction given below that the jury were bound to take the testimony of a witness as true, unless impeached, is manifestly wrong.

II. The verdict is fatally defective, in not specifying the degree of the offence of which the defendant was found guilty. (R. C. 1845, p. 883, art. 7, sec. 1; 8 Mo. 495.)

III. The use of intoxicating liquor by the jury in their retirement avoids the verdict. (Brant v. Fowler, 7 Cowen, 562; The People v. Douglass, 4 Cowen, 23.)

Gardenhire, (attorney general,) submitted the case for the State.

SCOTT, Judge, delivered the opinion of the court.

John Upton was, at the September term, 1853, of the Circuit Court of Ripley county, indicted for murder in the first degree, and was subsequently tried and convicted.

There was a motion for a new trial and in arrest of judgment, both of which were overruled, and the cause was brought here by appeal.

One of the grounds for a new trial was, that the jury, in their retirement, used intoxicating liquors. Another ground was, the misdirection of the court in point of law, in giving the following instructions: “That the testimony of a witness given upon the stand will be taken as true, unless such witness be impeached.”

The motion in arrest was founded on the omission in the verdict to state the degree of murder of which the defendant was found guilty. The verdict was: “We, the jury, find the defendant guilty in manner and form as charged in said indictment.”

1. In consequence of the want of conveniences for holding the sessions of the courts in many counties of the State, we have never lent a willing ear to objections against verdicts growing out of irregularities in the conduct of jurors, unless such irregularities affected the verdict, or were induced by means employed by the party obtaining it. Whilst the conduct of jurors cannot be too narrowly watched by the courts, yet, if they do misbehave, if it cannot be seen that such misbehavior affected the verdict, it has been thought best, under all the circumstances, to leave such misbehavior to the reprehension of the courts and the punishment imposed by law, for it, without disturbing the verdict. No court would be warranted in receiving a verdict against a prisoner, from a jury, any member of which was in the least under the influence of intoxicating liquors. But to hold that a verdict should be set aside for the use of ardents spirits by the jury, not carried to an excess, when such spirits are not supplied from a source interested, or calculated to bias the minds of the jurors, would be establishing a rule which would result in no practical good, and prove very burdensome to the parties....