State v. Price
111 Mo. App. 423
Mo. Ct. App.
1905
Check Treatment
BLAND, P. J.

(after stating the facts). — It is permissible in this State for hired counsel to assist the prosecuting attorney in the prosecution of a criminal case, bnt I do not think he should be permitted to make the opening statement of the case to the jury. The statute prescribing the order for trials in criminal eases (section 2627, R. S. 1899) provides: “The jury being impaneled and sworn, the trial may proceed in the following order: First, the prosecuting attorney mnst state the case and offer the evidence in support of the prosecution.” “Must,” as used in a statute has frequently been construed not to be mandatory. Brinkley v. Brinkley, 56 N. Y. 192; Jenkins v. Putnam, 106 N. Y. 272; Ins. Co. v. Van Wagonem, 132 N. Y. 398; In re Rutledge, 162 N. Y. 31; s. c., 47 L. R. A. 721. And has frequently been construed to be imperative. Eaton v. Alger, 57 Barb. 179; Hodecker v. Hodecker, 56 N. Y. Supp. 954; Osborn v. Lidy, 37 N. E. Rep. 434; People v. Thomas, 66 N. Y. Sup. 191; Street Railway v. Scanlan, 168 Ill. 34.

In Steines v. Franklin County, 48 Mo. l. c. 178, and in State ex rel. v. King, 136 Mo. 309, 36 S. W. 681, 38 S. W. 80, it was held that the word “may,” in a statute, will be interpreted “shall,” where the rights of third persons are involved or public interest requires it.

It seems to me that the first clause of the statute (section 2627, supra) prescribing the course of procedure in the trial of criminal cases is imperative as the fourth clause of said section which requires the •court to instruct the jury “in writing upon all questions; of law arising in the case which are necessary for theirinformation in giving their verdict.” This duty of the court has been declared to be imperative. The State v. Rufus, 149 Mo. 406, 51 S. W. 80. To state the case to the jury is made the duty of the prosecuting attorney by the statute, and it seems to me to be an imperative one but whether imperative or not, it is no more competent for him to delegate the performance of that duty *428to hired counsel or counsel who may volunteer their assistance than it is to delegate to them the performance of any other of his official duties and I think the court clearly erred in not sustaining defendant’s objection to McPherson stating the case to the jury. I also think that defendant’s objections to McPherson making the opening argument and to Skinner making the closing argument to the jury on the part of the State should have been sustained. These lawyers were prosecuting witnesses on the first and fourth counts of the information and testified as witnesses for the State on the trial. It was highly improper and must have been seriously prejudicial to the defendant for lawyers in the attitude of McPherson and Skinner to address the jury on behalf of the State. They were afforded not only the opportunity but had the broad license to recapitulate, elaborate and emphasize their evidence in their addresses to the jury. This was certainly unfair to the defendant and for this reason reversible error.

Under instruction 11, given after the jury had returned its first verdict finding the defendant guilty generally, it was bound to find defendant not gnilty on all the counts or guilty on all the counts of the information and, as it has already found the defendant guilty generally, it could not find him not guilty without stultifying itself, therefore, there Was nothing left for the jury to do but to retire and assess the punishment on each count, write it in the four forms of verdict of guilty furnished by the court and return and deliver the verdict to the court. The State’s attorney refers us to an instruction given by the court to the effect that the jury might acquit on any one or all of the counts in the information, as curing the error in instruction 11. The vice of instruction 11 is that it was the last and final declaration by the court of the law of the case and made at a time and under the circumstances that naturally led the jury to believe it must find the defendant not guilty as to the whole charge or guilty on each count in *429the information, and the result shows that it took the instruction as its guide and implicitly obeyed it. There are a number of other errors assigned but as it is not likely they will be repeated on a retrial of the case, we deem it unnecesssary to disscuss them here.

The judgment is reversed and the cause remanded.

All concur.