*1 suffering pain and a diminution of earning power. clear plaintiff therefore the court directed compensate overlapping damages. elements of erroneous, The instruction was even warranted the evidence. practice personal injury
It has become a common cases for the plaintiff defining ask no instruction the issues damages only. one on the impli to secure measure of The natural gives cation which rise in the minds of the jurors expected is that are to return a verdict ground, some undefined ^or the court Pontiff deeming necessary advise them as to the damages might be awarded. And the instruction on meas damages frequently, case, catalogues length ure as in this overlapping clauses, overlapping duplicates, extent every practice Only re conceivable element. is vicious. judgments of it will criti versal obtained means end it. Mild longer cism will no suffice. opinion. foregoing principal
For I from the reasons dissent Ellison, JJ., White and concur. Bevins, Appellant (2d)
The State v. Rhode . 43 S. W. 432. Banc, 1931. Court en November *2 Shartel, Stern, Assist- Attorney-General, Henry Stratton H. Attorney-General, ant respondent. >By of Howell COOLEY, Court information in Circuit 0. Bevins, on date charged defendant,
County it was Rhode feloniously -qpon and wilfully named, unlawfully, did revolving while firearm, to-wit, pistol, person a his certain about was under prosecution Bevins was intoxicated. ihe said Rhode *3 4029, Revised 1919, now Section Revised Statutes an offense for which, things, among other makes Statutes any intoxi- any person firearm when possession” to “in his by jury, the by the cated. was found Defendant years’ penitentiary, and to in the imprisonment court sentenced two appealed. he unnecessary to refer to the
In the view we the case it is take of say sufficient to sustain the further than it was evidence to that regard and we guilty. The information was not assailed verdict except no in the record it as sufficient. We find substantial errors noted. those to be hereinafter verdict: following
The “We, returned the Jury, Defendant, Rhode Bevins
the find the charged punishment at one in the Information assess his and we do year Penitentiary.” in the State following was returned the
The record shows that when the verdict occurred: By “Gentlemen, fixing you rendered in verdict COURT: ? year your penitentiary, at one in is that verdict say you So all?” jurors and the court at dis- answered the affirmative once charged jury. objected excepted i The defendant to
(cid:127) entry appears: verdict. This record then
“Whereupon being less by for than reason, of the years, years’ to-wit, year, two two one does assess the imprisonment penitentiary.” in objected excepted action of the
Defendant to that court. No. 1 given instructions. declared that The court had three itj duty law! the court’s instructions as the was the to receive necessary found hypothesized orderj the facts convict, jury, and directed tbe conviction, case of to assess imprisonment “at penitentiary' defendant’s in the state exceeding years by not two or a fine of not less than nor $100 more $1000, imprisonment county jail than or in the not less than fifty days year, nor than or impris more one both such fine and credibility onment.” The other two instructions with dealt of wit nesses, presumption doubt, of innocence and reasonable not need given informing be noticed. instruction was No that imprisonment penitentiary minimum in the that could be years, was two which is the minimum term in penitentiary any given can ease. R. [Sec. 1929.] trial, wherein, In due his motion new time filed for things, charged among other he court failed to in- years imprisonment struct the least penitentiary discharging that could be assessed and instructing instructing them that effect “instead of give court did in could the defendant as the effect any penitentiary years.” also time to exceed two It is increasing fixed alleged erred in jury. represented counsel in Appellant has filed no brief and alleged look his motion new trial for errors this court. We excep complains. from appear It does not the bill of he giving in objected exceptions or tions he saved given any requested instructions which were he structions on all excepted at the time to the court’s failure duty court, however, without re It is the law of the case. “necessary questions *4 law quest, jury all of to instruct the 3681, R. S. giving their verdict.” for their information [Sec. in a ease criminal it now settled that a defendant And is 1929.] appeal on his contention that the
is entitled have considered to part the an essential omission of failed so to instruct necessary proper for the information law of the case the trial has called jury, his motion for new trial he if alleged omission, though did even he attention the court’s time, to subject, except, at request nor the an instruction on 252 Burrell, 672, v. give one. the court’s failure [State 58; 14, v. 274 S. W. Gurnee, 309 Mo. 709; S. W. appellant in his- (2d) (Mo.), 24 S. W. Harrison 985.] of the court sufficiently pointed out the failure for trial motion new greatest) (as in this case the well as jury inform that the least be assessed that could imprisonment penitentiary term of proceed we we apparent will be years. For reasons nec part law a regard a failure to the omission as and giving their verdict jury in essary information of the for the 1050 presented the rule
therefore under stated the error is above appeal. review on this contemplates
Our code procedure of criminal law and that on punishment trial to a shall determine and assess the prescribed statute, except within limits by where the statute expressly by or spe- authorizes court to do so where a statute punishment cific is fixed no alternative. with by 1929, provides Section Revised Statutes that “where law regard any kind or there or discretion in extent is alternative punishment and inflicted the assess declare punishment judgment in their a verdict and the court shall render provided.” (Italics according verdict, except to such as hereinafter ours.) designate exceptions. The next sections four
By provided jury agree upon Section 3704 is that where the agree upon punishment fail to to be in- a by verdict, and where flicted or do not declare find and assess author- a verdict a by confession, law, judgment and in cases of ized all judgment and ac- shall assess and declare render cordingly.
By provided that if assess 3705 is Section ment, imprisonment fine, prescribed for below the limit either of offense, pronounce judgment and render the court shall sentence according prescribed limit such case. the lowest provides assess a 3706 Section highest fine, greater than the limit imprisonment or whether disregard offense, excess the court shall law for the declared high- according to pronounce judgment and render sentence particular case. by law in the prescribed limit est By 3707 is authorized to reduce the extent Section the court jury if in its duration greater than punishment assessed proper but the conviction inflicted under the circumstances. should “may” says that the It will be noticed “shall” render the court declare the assess and word “except provided.” The accordingly, as hereinafter referring power mean “shall” when “to a “may” interpreted public interest and officers, which concerns public given to jure persons, claim de that the who rights of third County Vernon ex rel. manner.” exercised [State shall be 38 W. But 319, 36 S. W. King, 80.] *5 apparent we think that rule of construction it resort to place statutory foregoing provisions to wlas purpose the grant privilege, the of de duty, merely to not the the deny to they if thereon and can termining the authority to tbe court to determine the except where perform has duty the failed to the primarily devolving upon it, giving the the power, court further discretion, reducing, its increasing, but not legally a jury. the Cor- relatively, a defendant right would have the jury perform to have the duty imposed by statute, so duty the the unless we assume that the imposed was for the sole benefit of the State with no concern for defendant, the which we think should not be assumed. Of course provision regarded the privilege granted as cannot a for the jury. benefit the only
Not do the statutory provisions clearly point referred to legislative intent, expressions of this court indicate always the court has so understood and construed them. These statutory provisions substantially present their been form have in force for great many years. a Hamey, v. 168 Mo. [See 67 S. W. In that the constitutionality giving case 620.] a statute authority the court fix the on conviction of certain a felony (carnal knowledge character) previous of a female of chaste issue, being atwas statute, contended the giving power fix punishment, violated the defendant’s consti right tutional jury. of trial Two members then of the court as strongly argued constituted de the statute did so violate the fendant’s rights. majority constitutional banc of the court en (correctly, think) right held we to have the of a right. But, not a constitutional was decision, clearly recognizes we understand statu tory provisions to, long prior above referred then and thereto force, imposed upon duty fixing punishment, giving right they if the defendant have the do so could agree, duty imposed but held that since statute and right could defendant’s was not constitutional statute changed. early State, In the 7 Mo. said: case of the court Fooxe duty inflicting imposes “This law on the Iment, fix any nor has unless the disagree, any punishment. inflict or do substance, jury in But court in told part duty, bring they authority general in a no of their had contingent, merely Whereas the court [verdict. duty, failure of dis- to be exercised where or a [primary, ’’ tgreement. jury, requires exercise. part its substantially the then now. applicable same law was statute Gilbreath, 500, 32 W. Dhat 1023, was followed instance, instruc- with other gave first which the court could ions, telling jury found defendant one *6 1052 agree verdict. punishment so in their they
not on tlie should state Of that instruction this court said: de- giving 4. The law
“The court erred in instruction number duty affixing punishment of the jury of volved the the the disregard that jury portion to invited the defendant. court ’’ duty instruction. by giving this soundness 242 W. Hubbs, the State v. ques was therein in the on the rule announced Fooxe case the facts court the having to tioned, announced jury in case the Fooxe the But given. was they agree the instruction could not before the inflicting duty of was of the that the there no criticism statement the contrary, jury. On the primarily upon the devolved say recognized, the directly was correctness of statement “ jury to assess duty of ing, primary 233: the 294 Mo. l. It is the c. out point to instance permit the first punishment. To the court done regard, as was duty way its avoid for to policy of contrary to regarded as case, may well be Gilbreath the law.”
Many might expressions indicating more of this court be cited duty fixing the view that the where there is an by placed primarily upon alternative is statute and that may power only exercise that when the has failed to duty properly discharge regard. its 'We have found contrary. duty being imposed upon thus none to the duty certainly corresponding the defendant has a to have that performed may intelligently be properly and and the end it performed necessary so it as that the instructed applicable law. presumed Jurors are know the not law except given case instructions. as to them the court its duty expressly they in this that was their Indeed were told case;” to receive the court’s instructions “as law not part but all of it. to have i Since the defendant’s constitutional, course, statutory, it, he takes sub- not f imposed by pertinent other
ject conditions statu- limitations and tory But provisions; 3704, 3705 3706. instance Sections fully jury correctly he entitled to have the informed By instructing! might punishments be assessed. to the various imprisonment ini they could assess failing exceeding years” further to I penitentiary “not two a I imprisonment assess such them could probably! jury years court misled the less than two term year penitentiary, assessment of one induced the punishment| “not authorized law.” regarding language No. Instruction fol-j language of the denouncing
lows tbe statute pre- the offense and scribing always merely it is But sufficient language particular use of a statute an instruction. That misleading. given, sometimes That the instruction as further years instruction to the peniten- effect that least *7 tiary imprisonment misleading this assessed, could be was in ease Paraphrasing language there can no be doubt. of this court requires 25, ordinary State v. 178 Rose, 32, 1003, very Mo. 76 W. S. intelligence to understand from the use of the words exceed- “not ing years” any fixed length imprisonment may time of of expressly designated. so that does exceed not the time many affirming have right There been cases in this of court the trial court statute, to under the now Sec 3704, tion where the failed had thereon or to declare had or assessed and au declared a not by law; thorized also cases proceeded wherein court under designated statutes now as Sections 3705 3706. But and with single exception (Mo.), 90, of v. Miller we State 285 W. which later, any shall consider we unable have been to find case in which procedure approved such was where the of the failure to assess legal punishment apparently or been was due errone theory The ous insufficient instructions. those of cases shown Thornhill, 364, 832, v. Mo. S. W. where two defend jointly felony for ants were tried and found both and jointly, assessed their of stat contravention ute, 3702, appear now Section 1929. does not Revised Statutes said, not properly had been instructed. The court 371, up 174 Mo. point c. “as no had of l. occurred assessing policy no rule of demanded that the whole case be retried when statute furnished own should its irregularity.” controlling corrective for an fact “no such prejudicial up are errors disclosed the record the return of pointed the verdicts” in the and other out Thornhill similar cases is opinion by J., "Walker, in a well-considered concurred in all court, Lambert, members of this division of 705, 300 707. jointly S. W. There two defendants were tried felony. separate The court failed to instruct to make a finding as to each defendant both were found assess requested punishments separately. had their defendants presented instruction, point but the in their motion for trial, new case. an It was held such instruction was ease, part necessary of essential of the for the information rendering verdict, matter therefore a mandatory duty present it was the the court to under review. presented for 3681, point was therefore and that the
Section render the error and correct Concerning trial court to of the 1919, now Statutes 4048, Revised proper judgment under Section 1929, court said: 3704, Revised Statutes Section 197, empowers amended, p. Laws “While cases, in certain the trial to assess court the statute within the limitations can exercised the rendition prejudicial preceding error- in the absence of cases cited and Carroll, 288 l. c. the verdict. [State empower the trial be to To would rule otherwise reviewed.] cor errors prejudicial other eliminate from consideration . Cases, the assessment rection verdict and subject held to be guilt have findings been therefore, joint grounds of error are-those trial courts correction records.” appears prejudicial error preceding which no properly to in- trial the failure court held judgment was which the error for prejudicial struct -the remanded. reversed and the- cause *8 Miller, supra, jointly were tried and
In v. defendants State two of ivas single joint punishment with verdict of assessment a court, however, The following instruction of the court. returned an which, held, separately, it was satisfied the sentenced the .defendants harmony with the later seems of statute. That decision out State Lambert, supra, and the still later-ease of decision in v. (2d) latter (Mo.), 23 183. In the ease there v. Craft al. S. W. et case, trial court and, in the were defendants Lambert findings separate and in of make jury to failed to instruct which error the punishment, of separate conviction assessments jury remanded, although the judgment and the cause was reversed it was not separate guilty. court said The had returned verdicts of separate verdicts, question of whether the question a of- “but a defendant and convict one knew that could instructed and ” approved Lambert, supra, acquit . . . . other v. holding the omission that point and followed and also on instruct on subject failure to was a proper of a instruction on that part of an essential case. Miller, supra, judge who wrote in State v.
The learned which, being eases, in concurred both the Lambert and later Craft | n cases, in far overrule State v. so as the latter an- effect Miller contrary holdings nounces a rule in the Lambert | and Craft cases. principle involved in the case at bar as in I same 1, Duddrear,
Lambert 309 Mo. and Craft cases. State S. W. 360, principle directly point! also is more involves the and same felony, punishmentl on was convicted of a facts. Duddrear his by imprisonment tbe years’ at twelve penitentiary tbe and accordingly. be was sentenced Tbe maximum al years. lowed the statute was ten trial instructed bad tbe found tbe defendant’s should be imprisonment assessed at penitentiary “not less than two years,” neglected bad but to instruct the maximum was ten n years, said, which was held to be reversible error.
Mo. l. c. 5: (Sec. 4050, 1919)
“The statute
1929)
R. S.
(now
3706, R.
Sec.
S.
authorizing
court,
if the
assess a
in excess of
bjr
prescribed
law,
disregard
pronounce
the excess and
sen
judgment
highest'limit
tence
render
according to
prescribed
regard
law in
particular
observed,
if it had been
could
not be
purpose
invoked to sustain this conviction. The
stat
ute
tois
enable the trial
court to render a correct
has been
degree
instructed as
©f
disregard
returns
verdict
of such instruction
in excess
legal limit;
the statute confers no
amendment
error,
trial
here,
court where
consists
a -misdirection
Britton,
(Mo.)
the court itself.
183 S. W.
See
[State
295.]”
Milligan,
215,
also State v.
meant to inflict lan- guage section, “If said assess a whether ’’ imprisonment fine, by law, etc., prescribed means below the limit the hincl indicated in which is or class the verdict A prescribed below the limit that class of construc- tion of Section Bevised Statutes would seem *9 interpretation adopted 3705 authorize such of Section 1185, (2d) decide, Dummitt, 2 not Mo. S. W. 731. We need however, susceptible whether Section 3705 is of such construction or applicable which au- whether the statute would be punishment punishment where thorizes to assess the the court by law, authorized because the is one not where, case, was not either section as authorized act under rendition the verdict prejudicial preceding there was of error may causing which been was instrumental and doubtless jury. erroneous assessment holding not, course, giving as We are to be understood that the as to properly an failure erroneous instruction or the inflicted would of itself be reversible defendant patent that the was. from the record thereby apparent it is no means prejudiced. prejudiced. he was not require which would reversal
There is error in the record another remanding, for the rendition not however for new trial judgment. proper judgment of a The entered of record was larceny, grand for conviction of the offense for conviction showing which The record al- defendant was tried and convicted. judgment, except locution, for the differences nam- sentence and Hesterly, offenses, ing identical with State v. is almost error, W. 76 S. which because of to the trial sentence remanded with directions court to reversed and verdict. judgment in accordance with the the defendant and render out, pointed failure to instruct For the error above inflicted, might which Westimes, G., for new trial. cause remanded is reversed and the concurs; Fitzsimmons, G., dissents. Cooley, C., opinion of in Division foregoing
PER. CURIAM: The Uagland, hereby opinion adopted of Court en Banc. Two as the 1., Ilenwood, 11., concur; WMte, Ellison, Frrnh, dissents 1., Atwood, 1., Gantt, separate opinion which G. concur. "WHITE, (dissenting) I think the J. dissent because well- —I Cooley Judge misconception plausible written and shows of the statutes and decisions. We view case.
I. should first take a common sense of this his charged, The but assessed found the defendant n year penitentiary punishment at in the state one —a be inflicted. this error and not allow to the law does #For the minimum to instruct failure of the court years judgment is reversed penitentiary was two ment in the for new trial. remanded cause guilt and the assessment defendant’s The determination functions, separately separate and distinct his are guilty. Then the defendant first find must performed. circumstances, assess shall, under certain jury may, or the court appears and no error was found the merits. trial on in the record of the: majority opinion turns the contention that ruling punishment, try instance assess make a in the first must discharged by judge. can be Of it, that function before be remanded with could directions the case if that is correct course, *10 jury upon jury and let that a summon court to the trial
1057 trial, introduced at upon evidence tbe bearing again, tbe witnesses assess tbe with instruction that guilt already had Appellant knows'very been determined. well judge that tbe trial punishment, proper can assess a pur- case is remanded for tbe pose. But is not appellant tbe what wants. He wants a new on tbe trial merits to determine he whether or innocent— already adjudicated a matter against him without error —and precisely gives what majority opinion Something him. which, circumstances, under the he is not A entitled. defendant charged many with crime a has advantages technical over the State. he advantage. adjudicata.
But has not that That issue is res II. a right Has such case a jury have the first instance may determine the be inflicted after being guilty? right. found He has no such constitutional mat .The length ter was at many considered authorities cited in the case v. Hamey, 168 provision where was held that the 28, Article-II, Constitution, in.Section right “the trial by jury inviolate,” enjoyed as heretofore shall remain means right jury to have a guilt determine the innocence the accused. enjoyed” right law, “As heretofore means common existed punishment; under which the it was did court. opinion, argues right But the statutory that the defendant has a punishment. to have a in the first instance assess his just be said here that unless he such a conclusion of has opinion wrong. statutory If he then.no has no such instructing jury upon point error in no assessing a verdict of would authorize trial, duty. be perform new for the That must court could theory upon adopted by opinion.. conceded in- order to reach the conclusion must the first “may.” punishment, stance assess the holds that word assess, 3703, authorizing Section a must as to en- construed to mean “shall” —a construction so strained harmony tirely cognate the. statutes. out of with context “may all cases provides Section . of.conviction their verdict.” assess and declare the jury finds a verdict of says where the Section or do de- be inflicted fail to “and verdict; the court shall assess punishment by their clare such And, jury “assess a punishment.” declare the by con- in all cases of by law,” “and not authorized ment fession,” shall assess punishment below provides assess if the
1058 by prescribed limit law for tbe offense tbe pronounce court shall judgment according prescribed by render to the lowest limit law. provides punishment greater Section 3706 if a assess highest by than limit declared law for the court shall the offense disregard according highest pronounce the excess and sentence to the : prescribed by limit law. provides power “in the ‘court shall have all cases of conviction” to the extent duration of reduce punish- jury, opinion proper if in its conviction is greater is than circumstances of the case ment assessed under the ought be to inflicted. relating jury’s authority “may” In section the word .the to authority relating of the
is used. In each four sections of the construing “shall” these is used. statutes word interpretation give language first rule of is to effect as used. to expresses They used those words the intention the lawmakers. It advisedly.
Taking together general policy all these statutes show the undoubtedly purpose Legislature of the of the law. It was the, enjoyed” regard Constitution phrase heretofore to “as imply. terms right to what limiting of the defendant as those “may” however, making gives this reason opinion, The mean “shall:” interpreted referring ‘may’ mean ‘shall’ when is
“The word to given public interests public and which to officers to concerns persons.” rights of third up principle how So matches case. Let us see with is it public seeing concerned here is in as interest far enforced,and punished anyone convicted of a crime shall be according law. to may presumed “rights persons,” As of. third to
n rights opinion means the instance the writer claimed right defendant. instance, and the musf in the first section his
assess protect a “may” “shall” so means be construed until was so did not have the section construed. which defendant to create a order be construed must is, the section That right. reasoning protect that That so construed conclusion. It like -reach the by which we logic is the in a-circle salary paid, himself income increase his in order the man who support earnings. cited of his out King, l. c. rel. v. construction, ex duty determines simply its facts. entirely different fees an officer. regards retention county. county then certain fees to retain is permitted officer After the court must allow them. Iu that case there are no any facts nor statute similar to those under consideration here. language of the statutes under consideration seem be For
overlooked. instance, Section 3704 declares that where the jury agree upon guilt a verdict of but fail to “or
ment do not declare their verdict” the court shall assess the How can that be construed *12 jury mean that the must punishment? merely assess the It is not they where fail the punishment they but where not” “do assess it. can language Where one find express broader a discretion? No condition is jury attached to “do not.” The they please. they do or not as If not, do the court must. Then Section 3707-—“The court shall power in all cases ’’ reduce, conviction to All together etc. these sections taken . legislative policy contemplate show jury the did not that must the punishment. in the first instance assess the interpretation
Now see where the opinion the if leads the reasoning jury If instance, should sustained. the must in the first claimed, good then no can verdict punishment. they jury If unless do assess the do where the must performance duty? stop of that would we short of the That con- Sec- struction cannot harmonize with the discretion mentioned in tion 3704. opinion support
III. The authorities do not the conclusion. The State, 7 cites the case of Fooxe v. Mo. 502. In case the court that jury they right instructed the had to return a verdict of a guilty any assessing punishment. That to be without was held opinion saying error, the the error and reversed imposes upon duty inflicting that the jury it no telling in error in was ment and the trial court was contingent part duty; of their of the court was quoted in primary. ruling approved was and and not That jury had after the Gilbreath, case of Mo. where they they agree. could not long been time came in but out a they have a thereupon instruction that gave court an additional any punishment. right assessing to return without a verdict judgment reversed, the was That instruction held error and quoting case. opinion length from the Fooxe review in this court in the ease of those cases came under
Both (l. 229-230), Hubbs, c. re of State v. where open court, discharged and turned the verdict into was court, exceptions bill of showed punishment. assessed the inquired they deliberating court how was while they agreed reported that had The foreman stood as to numbers. agreed upon guilt, as to the of the but had they verdict, inquired if could return punishment, and that kind they replied over the right. and the court had that This was objection exception takes defendant. quotes error. actually as what occurred and holds it was not from Fooxe case while court Gilbreath there no distinguished the the conclusion shows Gilbreath case first distinction. In the Fooxe case the were instructed assessing they might instance that return a 'they In the had been out and had casé after Hubbs they agree upon failed to were instructed they a verdict. had statute return such under the thing If had The same case. occurred Gilbreath they instructing them that under the law where was the error had! what difference make whether that instruction And did it given given during progress them at the start or them 234) distinctly (p. : “We think said deliberations? The here.” the rule laid own in the case should be followed Fooxe quoted Emery, The court from attorney he assigned prosecuting when the remarks told could not the defendant found *13 verdict they court the could return into guilty punishment. fix judge of would and his honor the attorney merely stated the said the prosecuting there that opinion in quoted pertinent law and in the made this statement n the Hubbs case: ‘‘ assigned for error this, Has come to is to that truth . this court?” Fooxe opinion distinctly
Thus the that in the Hubbs case held rul- directly contrary not to the case should be followed and ruled overruling ing What is impliedly latter. Gilbreath may or that “truth” It that may .they which the be told? is may ruling in the punishment. not Hubbs Under the they case the court “must” assess could not tell the that they could properly but “truth” —that told them the return a to be instructed it. The were entitled told “upon case,” all when the law of the and were so instructed they punishment. did not have to assess the opinion which show the miscon other are Two cases cited ception Lambert, law. One quoted passage it is which apparent from because misconception assigned (p. directly contrary ruling- Error to the here. they 709), had a court failed to tell the .because the guilty, guilty both guilty one the defendants to find .of .one it. That error warranted' was the evidence guilty, both not merely go It to the judgment didn’t which was reversed. on punishment. of It went assessment guilt determination of both or innocence trial, who were on a constitutional defendants of jury function. What has principle to with matter under do fixing finding of consideration here—the of after guilt? It be is true the court there was case finds error punish cause the found the defendants and assessed their jointly separately required ment instead of as statute. [Sec. on
R. S. That, course, of was error could be avoided which 1919.] trial, another but opinion not reverse the did ground. says error, l. c. 711: empowers (Sec. 1929), “While . . R. S. . certain, cases, power
the trial court to assess only can exercised .within the limitations of the statute prejudicial preceding and in the absence the rendition error the verdict “preceding the verdict” was the failure to jury might other not. find and the. one guilty. page
Some confusion arises when the court on the used same expression findings guilt” “joint “joint plainly assess when punishments” which ments of was meant —a confusion follows up majority through. all But the matter was cleared here said, when the court l. c. 712:
“The facts this case therefore be thus summarized: entitled, jointly charged tried; 'they defendants were and thus were defining right, as a matter of to an instruction They determining guilt, severally. their jointly as to joint guilt A their given right. verdict, both
were not court, punishment, was rendered. trial the extent their entitled,, were ignoring instruction to their proceeding regularity of the assumption prior proceeded on the This, inwas to correct the verdict and assess injurious authority not minimize the court’s and did excess of the *14 mine.) (Italics jury.” instruct the failure to effect of the judgment was meaning that the be tortured into How can this on the de- than failure to any reason other for reversed guilt jointly. separately and not termination of Craft, 23 S. W. opinion, State v. the other case cited is clear: 186, principle there stated l. c. the
(2d) 183, ground the State’s instructions complains the “The defendant convict one de-. opportunity an afford the it did not guilty, or acquit other, or find both the fendant matter citing Lambert case—a warranted evidence it” — defend- both of the of one or directly or innocence went to the guillj nothing assessment of ants. It to do with had Those two cases opinion are in cited support here in
proposition must if first assess the punishment, and they fail to powerless do so on an erroneous instruction the court is majority to do it. opinion here was no doubt influenced misconception of what was decided in those two cases. Carroll, In the the opinion Lambert case cites v. approving 392, disagrees. Mo. majority opinion with which the There (l. only complained c. in 408-410), the verdict was the alleged 4046, 3702, violation 1919 (See. of Section Revised Statutes R. 1929), assessing separately. punishment, in There was complaint no guilty jointly. that the found the defendants 1929, It should be noted here that Section Revised Statutes jointly in requires, tried, several defendants are where separately conviction the must be assessed. There of each guilty. requirement separate is no there shall be verdicts of requires jury may an instruction find one or more Having guilty. several rest not done defendants finding separate they may jointly verdict, one that, state ly, they separately punishment, or fail to state provided state c. 288 Mo. l. seems case, at all. The verdict the Carroll might very have comply well affirmed with the law. The court should judgment remanding. Perhaps there guilt determination pointed out the distinction between the any, error, if that the and the assessment of in the latter. provided that which The court called attention the statute citing separately, each be assessed conviction must if do 3704) provides which (now Statute punishment, and not assess the court shall said: verdict, such as rendered a a is held that where renders
“It
against
joint
crime
several
fixing
court,
pronounc-
the trial
corrected
defendants, the error
separate-
against
defendant, assess
judgment
ing
sentence and
’’
punishments.
Citing
cases.
ly
numerous
their
c.
l.
quoted
Person,
opinion then
576:
Gordon,
from State
passage
the latter recited
refused to receive
therefore,
court,
should either have
“The
failing in this
form or
its( being put
proper
suggested
verdict and
and declared
itself have assessed
should
verdict,
to do.
failed
ease, by
defective
and the
be reversed
must
“For
this cause alone the
bring the de-
court to
the trial
remanded, with directions to
cause
to assess and de-
having
proceed
done so
it, and
before
fendant
clare
mine.)
punishment.”
(Italics
his
*15
That was the order made in the Carroll ease. That is the order
were
should be made here. The Lambert case
Craft
and the
ease
ground
solely
jury was not authorized
reversed
on the
separately
guilt
two de-
find
as to the
or innocence of each
Apparently
fendants.
no instruction to the
there was
just they
punishment separately
Carroll case that
must assess the
fixing
punishment.
in this case
no instruction
the minimum
there was
law
concerned,
as the
justice
far
of the matter
so far
So
as the
kinds
concerned,
the different
there is no distinction between
How
punishment.
as to the matter of
failure to instruct
fail
injury
the court
to have
is it a more serious
to the
penitentiary
in the
punishment
instruct on
minimum
they
assess the
must
the failure of the court to instruct that
fol-
case was
they
Carroll
separately if
it at all? The
ment
assess
again
Miller,
point
punishments
considered was
separate-
that the
jointly,
shows
sessed
and because
record
satis-
were
of the statute
ly
requirements
punishment the
fixed the
they
it;
regard
erroneotisly instructed
The
were
fied.
sepa-
(Not
punishment.
guilty,
to assess
found the defendants
rately.)
Thornhill,
In State found both defend larceny and assessed their jointly ants at two years penitentiary. stated, It likely in the that the must punishments were not instructed separately. likely disobey
They not be a direct would instruction to that (l. 371), by Judge court said c. effect. B. James GaNtt, Gordon, supra: referring to the case ruling then and now commends itself for reason that “This point up assessing to the error had occurred as no policy demanded the whole case no rule of should its own ir- the statute furnished corrective retried when ’’ regularity. 3705, verdict does not fall within Section this case the Btevised assessed was minimum below the
Statutes allowed for the because offense county jail punishment. still lower imprisonment fine —a greater because it was not under would not come allowed, years which was highest punishment than the year penitentiary, verdict was one penitentiary. It comes within Section where the allow. law did not by law. The not authorized assesses
finds a verdict a lawful should then duty. perform that it trial court remanded should be prevail necessarily by implication we is to majority opinion If the *16 1Ó64 case, Carroll
overrule cáse, Thornhill case, Miller Emery case, case, the Hubbs and others. The effect would be more than ruling that. The majority purely technical, opinion is disregarding the merits already guilt established question with no error. This years past making been history few has in getting away from technical constructions which hinder the justice administration of tendency in criminal cases. The has been to adjudge a upon ruling its in this case is recession; go merits. half we back a generation to the time when small technical error not affecting question guilt merits innocence permitted upon State a retrial or to impose work an absolute reversal of already had been tried a case its merits. I Atwood, J., reasons dissent. G. For these and Gantt, J., concur. Armstrong. (2d)W. 422. J. 43 S. v. N. Wilhite, Appellant, C. C. Banc, November 1931. Court en appellant. Dubinslcy, Duggan for & Stein respondent. Lyon Anderson Leahy, & Saunders Walfher