80 Mo. 681 | Mo. | 1883
Lead Opinion
The defendant was indicted at the November term, 1882, of the criminal court of Saline county, for the killing of Prank Edwards, on the 29th of August, 1882, in. said county. The indictment was for murder in the second degree.
At the same term, .as shown by the record, the defendant being duly arraigned, pleaded not guilty, and a jury being empanelled, the trial began on the 27th of that month, and, after hearing the evidence, the instructions- of the court, and the argument of counsel, the jury on the 28th retired to consider of their verdict, and on the 29th returned into court, and being unable to agree, they were discharged by the court, and it was thereupon ordered by the court, that the bail of defendant be fixed at $2,000; whereupon court adjourned, until court in course.
So far as the record shows this action of the court, in discharging the jury and adjourning the court, was without objection on the part of defendant or his counsel; nor does it appear, that defendant demanded or asked another trial at that term. At the March term, 1883, the defendant was re-indicted for the same killing; this indictment charging murder in the first degree; whereupon, by order of the court, the first indictment was quashed, at the instance of the State’s attorney. Thereupon, also, the defendant being arraigned on. the new indictment, filed his motion to quash the same, which, was overruled by the court and excepted by the defendant; the record, however, nowhere sets out this motion, or shows what it contained.
The defendant then filed special plea of former acquittal, on the ground of the discharge of the jury, and the continuance of the cause at the September term, 1882, and the quash
A trial was thereupon had before a jury, resulting in a verdict of guilty of murder in the second degree, and assessing his punishment at ten years’ imprisonment in the penitentiary, and judgment accordingly, from which the defendant, after an unsuccessful motion for new trial and in arrest, has appealed to this court.
A number of instructions were given and refused at the final trial, and duly excepted to, which, together with the evidence in the cause, as well as the motions for new trial and in arrest, as far as deemed material, will be noticed in the progress of-this opinion.
The principal ground relied on for a reversal, and especially urged upon our attention, is the action of the court in overruling defendant’s special plea in bar of former ¿cquittal, above set out. The constitutional provision on the subject matter of defendant’s plea, is found in the 23rd section of the bill of rights, in our constitution, which declares: “ That no person shall be compelled to testify against himself, in a criminal cause, nor shall any person, after being once acquitted by a jury, be again for the same offence, put in jeopardy of life or liberty, but if the jury to which the question of his guilt or innocence is submitted, fail to render a verdict, the court before which the trial is had, may in its discretion discharge the jury, and commit or bail the prisoner for trial at the next term of court, or if the state of business will permit, at the same term; and if
Tried by this rule, which is paramount to the rules found elsewhere, the plea in question, would seem to be manifestly bad, since it is not pretended that there has been an acquittal by jury; but it is insisted, by defendant’s counsel, that the discretion, here given the court, to discharge the'jury when they fail to render a verdict, is a “ sound legal discretion,” and that whenever it appears that that discretion has been arbitrarily or unsoundly exercised, such discharge, in legal contemplation, operates as an acquittal, within the meaning of the constitution, and entitles the defendant to his discharge. Concede, for the sake of argument, that this position is well taken, the question still remains, whether the record, in this case, shows that the court, in discharging said juries, or either of them, exercised its discretion, either arbitrarily or unsoundly. In such cases the rule is, that when the trial court has a discretion in matters of practice, its exercise is presumed to be sound and correct, unless the contrary is plainly and manifestly made to appear. In this case, nothing of the sort is shown. At the first trial, it is true that the jury were out but one day considering of their verdict, when, in the language of the record, they returned into court, and “ being unable to agree,” they were discharged by the court, and the cause continued. Here seems to be a judicial finding of record of the jm*y’s being unable to agree; and without more, we cannot say, as a matter of law, that such finding is not true, or that the trial court that heard the evidence, saw the witnesses and know the jurors in question, exercised an unsound discretion in so discharging the jury. This is more manifest, when we consider that, so far ¡is the record shows, or, indeed, otherwise appears, said dis
At the second trial, the jury were out three days, considering of their verdict, when “ being called, they reported to the court that they were unable to agree upon a verdict,” whereupon they were discharged by the court. It is true, that the defendant, at this term, did object to the order discharging the jury, but that objection could not have the effect to divest the court of its conceded discretion to judge and determine whether the report of the jury, so made to the court, was true or not. It may be conceded that the request of the prisoner, that the jury might be allowed, or even required to further consider of their verdict, ought not to be disregarded by the court in determining the question, yet, without more, it is in the sound discretion of the court to order their discharge, if in view of all the facts and circumstances, it is satisfied that the jury are unable to agree, after a reasonable time and opportunity has been afforded and they so report under oath. In this case, the jury had been out three'days, and we are not prepared to say that the prisoner’s objection alone should outweigh all other circumstances of public justice, or control the honest discretion of the court in deciding, as it seems to have done, that the jury, in point of fact, were unable to agree upon a verdict, and if so, its power and duty to discharge the jury cannot be questioned, and such discharge of the juryso ordered, constitutes no bar to another trial. What might be the effect of an arbitrary, unwarranted discharge of a-jury, need not now be considered or discussed, as no such case is before us. State v. Jeffors, 64 Mo. 376, and authorities there cited. State v. Hays, 79 Mo. 600, properly considered, is in strict harmony with the views here expressed, and affords no color for the plea here set up and overruled. The trial court, therefore, committed no error in overruling said plea.
It is also objected that the court erred in failing to instruct the jury as to manslaughter in the third and fourth
If, therefore, there is in this case manslaughter in the fourth degree, it must be by reason of section 1250 of the Revision of 1879, which declares that“ Every other killing of a human being, by the act, procurement or culpable negligence of another, which 'would be manslaughter at common law, and which is not excusable or justifiable', or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” See State v. Edwards, 70 Mo. 480.
At common law, it is true, it was held that‘“in some circumstances when one intends to take life, áiíd does it, his offense is manslaughter and not murder.” Thus, in the languagé of Redfield, C. J., sitting iu. the Vermont court, “if the jury should regard this as a bona fidé case of mutual combat, without previous malice on the part of the accused, and that mutual blows were given before- the ac
Can it be said that the case at bar falls within the common law rule of manslaughter above laid down, so as to have made it incumbent on the court to have given aninstruction on manslaughter in the fourth degree? Does the evidence show this to have been a bona fide case of mutual combat, without previous malice on the part of the accused; or does it show, or tend to show, that mutual blows were given before the accused drew his knife, or that he drew it for the first time, in the heat and fury of the fight, and dealt the mortal blow in question ? A careful examination of the record before us, shows vei’y plainly, we think, that the defendant’s case does not come within the common law rule of manslaughter above stated, either as to the question of previous malice, or as to the time at which defendant drew his knife. In the combat that ensued, the evidence is abundant that the defendant was the aggressor, and provoked and brought on the conflict. Some months before the night of the homicide, as shown by the record, the deceased and defendant had a misunderstanding and disagreement as to the amount of wood hauled by deceased for defendant. After that, deceased sued.-defendant on this account and got judgment for the sum claimed by him. Afterwards, in a conversation with Montgomery, who had rented some land of defendant, on which he raised a crop of wheat, Mont, gomery told defendant that Edwards, the deceased, had promised to help him thrash the wheat. Dunn said he did not want him, Montgomery, to hire Edwards to help thrash the wheat, as he and Edwards might have trouble. Dunn also said that if Edwards knew he had an interest in the
The difficulty and homicide in question, occurred about 11 or 12 o’clock, on the. night of the 29th of August, 1882, in the town of Slater, Saline county, Mo. During the earlier part of the night, the defendant and deceased, with Nichols, Snider and others, had been in ITannehan’s saloon, where some of the party were playing ball pool* About 11 o’clock the saloon closed up, and the various parties left for home. It seems that the deceased accompanied Nichols home, and, that when they arrived there, they . opened the gate, passed through the front yard, up to the front door of the dwelling, where they were standing and talking, when defendant and Snider, on their way from the saloon to the defendant’s residence, passed by; and when opposite the front gate of Durnell, who lived on the adjoining lot west of Nichols, defendant checked his companion* Snider, and stopped; and then called to the deceased by name two or three times, to come out there, that he wanted to see him, or settle with him. It also appears that on the way from the saloon, and before they reached Nichols’ house, the defendant mentioned to Snider, his disagreement with deceased about the wood account, and said it was unjust. "When the defendant called to the deceased to come out, he answered and came out on the sidewalk near where defendant was standing, close to Durnell’s gate, and leaned against the fence. Some conversation passed between defendant and deceased about settling the wood account. Defendant proposed to pay $3 and settle the same; but deceased claimed $6, and refused to settle on defendant’s terms. Further conversation ensued, and the parties soon became angry, and indulged in abusive epithets, calling each other liars and other bard names. This wrangling lasted for some considerable time, and became so noisy as to attract other parties in the vicinity. While the quarreling was going on, defendant was seen to have his knife open in his hands. He afterwards shut it, but as he
The 13th instruction asked for defendant, had reference' to the credibility of a witness. The jury, in other instructions had already been told that they were the sole judges
The cause seems to have been fairly tried, under proper instructions, and finding no error in the record, the judgment of the criminal court is, therefore, affirmed.
Dissenting Opinion
Dissenting. — I think that the court should have given an instruction upon manslaughter in the 4th degi-ee. In refusing it, the court assumed that defendant opened his knife before the combat commenced, and, that he was prompted by his malice towards deceased to seek a difficulty with him. Two questions, which it was the province of the jury to pass upon. The evidence shows that at one time, before the fight commenced, defendant had his knife open, but it is equally jaositive, that before the-combat, he shut his knife; what he did with it, does not appear. He was not seen to open it afterwards. It was not afterward seen in his hands, and the only evidence to show that he opened the knife before the fight began, was, that “he was seen to put his hands together, as though he was opening his knife.” If it was a material question whether the knife was again opened, before the parties engaged in the conflict, was it so clear and manifest, that it was opened before the fight, that the court could assume that fact? Was the evidence so clear and conclusive that
With due deference to my associates, 1 think not, and, therefore, enter my dissent.