State v. Bevins , 328 Mo. 1046 ( 1931 )

I dissent because I think the well-written and plausible opinion of Judge COOLEY shows a misconception of the statutes and the decisions.

I. We should first take a common sense view of this case.

The jury found the defendant guilty as charged, but assessed his punishment at one year in the state penitentiary — a punishment which the law does not allow to be inflicted. For this error and the failure of the court to instruct the jury that the minimum punishment in the penitentiary was two years the judgment is reversed and the cause remanded for new trial.

The determination of the defendant's guilt and the assessment of his punishment are two separate and distinct functions, separately performed. The jury must first find the defendant guilty. Then the jury may, or the court shall, under certain circumstances, assess the punishment.

The defendant was found guilty by the jury and no error appears in the record of the trial on the merits.

The ruling of the majority opinion turns upon the contention that the jury must in the first instance assess punishment, or make a try at it, before that function can be discharged by the judge. Of course, if that is correct the case could be remanded with directions to the trial court to summon a jury and to let that jury upon the evidence introduced at the trial, or upon hearing the witnesses again, assess the punishment with instruction that the guilt had already been determined. Appellant knows very well that the trial judge can assess a proper punishment, if the case is remanded for the purpose. But that is not what the appellant wants. He wants anew trial on the merits to determine whether he is guilty or innocent — a matter already adjudicated against him without error — and that is precisely what the majority opinion gives him. Something to which, under the circumstances, he is not entitled. A defendant charged with a crime has many technical advantages over the State. But he has not that advantage. That issue is resadjudicata.

II. Has a defendant in such case a right to have the jury in the first instance determine the punishment which may be inflicted after being found guilty? He has no such constitutional right. The matter was considered at length and many authorities cited in the case of State v. Hamey, 168 Mo. 167, where it was held that the provision in Section 28, Article II, of the Constitution, "the right of trial by jury as heretofore enjoyed shall remain inviolate," means the right to have a jury determine the guilt or innocence of the accused. "As heretofore enjoyed" means as the right existed at common law, under which the jury did not assess the punishment; it was assessed by the court.

But the opinion argues that the defendant has a statutory right to have a jury in the first instance assess his punishment. It may be said just here that unless he has such a right the conclusion of the opinion is wrong. If he has no such statutory right then no error in instructing the jury upon that point and no error in the verdict of the jury assessing such punishment would authorize a new trial, for the court could perform that duty. That must be conceded upon the theory adopted by the opinion.

In order to reach the conclusion that the jury must in the first instance assess the punishment, the opinion holds that the word "may" in Section 3703, authorizing a jury to assess punishment, must be construed to mean "shall" — a construction so strained as to be entirely out of harmony with the context and cognate statutes.

Section 3703 provides that the jury in all cases of conviction "may assess and declare the punishment on their verdict."

Section 3704 says that where the jury finds a verdict of guilty "and fail to agree upon a punishment to be inflicted or do notdeclare such punishment by their verdict; the court shall assess and declare the punishment." And, where the jury "assess a punishment not authorized by law," "and in all cases of judgment by confession," the court shall assess the punishment.

Section 3705 provides if the jury assess a punishment below the limit prescribed by law for the offense the court shall pronounce and render judgment according to the lowest limit prescribed by law.

Section 3706 provides that if a jury assess punishment greater than the highest limit declared by law for the offense the court shall disregard the excess and pronounce sentence according to the highest limit prescribed by law.

Section 3707 provides the court shall have power "in all casesof conviction" to reduce the extent or duration of punishment assessed by the jury, if in its opinion the conviction is proper but the punishment assessed is greater than under the circumstances of the case ought to be inflicted.

In the section relating to the jury's authority the word "may" is used. In each of the four sections relating to the authority of the court the word "shall" is used. In construing these statutes the first rule of interpretation is to give effect to the language as used. It expresses the intention of the lawmakers. They used those words advisedly.

Taking all these statutes together they show the general policy of the law. It was undoubtedly the purpose of the Legislature to regard the phrase "as heretofore enjoyed" in the Constitution as limiting the right of the defendant to what those terms imply.

The opinion, however, gives this reason for making "may" mean "shall:"

"The word `may' is interpreted to mean `shall' when referring to a power given to public officers and which concerns public interests and the rights of third persons."

Let us see how that principle matches up with this case. So far as the public interest is concerned here it is in seeing the law enforced and that anyone convicted of a crime shall be punished according to law.

As to the "rights of third persons," it may be presumed that in this instance the writer of the opinion means the rights of the defendant. The right claimed by the defendant is to have the jury assess his punishment in the first instance, and the section must be construed so that "may" means "shall" to protect a right which defendant did not have until the section was so construed. That is, the section must be construed to create a right in order that it may be construed so as to protect that right. That reasoning in a circle is the logic by which we reach the conclusion. It is like the man who in order to increase his income paid himself a salary out of his earnings. The case cited in the opinion in support of that construction, State ex rel. v. King, 136 Mo. 316, l.c. 317, is entirely different in its facts. It simply determines the duty of the county court as regards the retention of fees by an officer. After the officer is permitted to retain certain fees then the county court must allow them. In that case there are no facts nor any statute similar to those under consideration here.

The language of the statutes under consideration seem to be overlooked. For instance, Section 3704 declares that where the jury agree upon a verdict of guilt but fail to agree upon the punishment "or do not declare such punishment by their verdict" the court shall assess the punishment. How can that be construed to mean that the jury must assess the punishment? It is not merely where they fail to agree upon the punishment but where they "do not" assess it. Where can one find broader language to express a discretion? No condition is attached to "do not." The jury may do it or not as they please. If they do not, the court must.

Then Section 3707 — "The court shall have power in all cases ofconviction to reduce," etc. All these sections taken together show the legislative policy did not contemplate that the jurymust in the first instance assess the punishment.

Now see where the interpretation in the opinion leads if the reasoning should be sustained. If the jury must in the first instance, as claimed, assess the punishment, then no verdict can be good unless they do assess the punishment. If the jury must do it where would we stop short of the performance of that duty? That construction cannot harmonize with the discretion mentioned in Section 3704.

III. The authorities do not support the conclusion. The opinion cites the case of Fooxe v. State, 7 Mo. 502. In that case the court instructed the jury that they had a right to return a verdict of guilty without assessing any punishment. That was held to be error and the judgment reversed for that error, the opinion saying that the law imposes upon the jury the duty of inflicting the punishment and the trial court was in error in telling the jury it was no part of their duty; that the power of the court was contingent and not primary. That ruling was approved and quoted in the case of State v. Gilbreath, 130 Mo. 500, where after the jury had been out a long time they came in but they could not agree. The court thereupon gave an additional instruction that they have a right to return a verdict of guilty without assessing any punishment. That instruction was held error and the judgment reversed, the opinion quoting at length from the Fooxe case.

Both of those cases came under review in this court in the case of State v. Hubbs, 294 Mo. 224, where (l.c. 229-230), the jury returned the verdict into open court, the jury was discharged and the court assessed the punishment. The bill of exceptions showed that while the jury was deliberating the court inquired how they stood as to numbers. The foreman reported that they had agreed as to the guilt of the defendant but had not agreed upon the punishment, and inquired if they could return that kind of a verdict, and the court replied that they had that right. This was over the objection and exception of the defendant. The opinion takes that as what actually occurred and holds it was not error. It quotes from the Fooxe case and the Gilbreath case, and while the court distinguished the Gilbreath case the conclusion shows there is no distinction. In the Fooxe case the jury were instructed in the first instance that they might return a verdict without assessing the punishment. In the Hubbs case after they had been out and had failed to agree upon the punishment they were instructed by the court they had a right under the statute to return such a verdict. The same thing occurred in the Gilbreath case. If the jury had such right under the law where was the error in instructing them that they had? And what difference did it make whether that instruction was given them at the start or given them during the progress of their deliberations? The court distinctly said (p. 234): "We think the rule laid own in the Fooxe case should not be followed here." The court quoted from State v. Emery, 76 Mo. 348, where error was assigned to the remarks of the prosecuting attorney when he told the jury that if they found the defendant guilty and could not agree upon the punishment they could return into court the verdict of guilty and his honor the judge would fix the punishment. The court there said that the prosecuting attorney merely stated the law and made this pertinent statement quoted in the opinion in the Hubbs case:

"Has it come to this, that the truth is to be assigned for error in this court?"

Thus the opinion in the Hubbs case distinctly held that the Fooxe case should not be followed and ruled directly contrary to the ruling in the Gilbreath case, impliedly overruling the latter. What is that "truth" which the jury may be told? It is that they may or may not assess the punishment. Under the ruling in the Hubbs case the court could not tell the jury that they "must" assess the punishment, but properly told them the "truth" — that they could return a verdict without it. The jury were entitled to be instructed "upon all the law of the case," and were so instructed when told that they did not have to assess the punishment.

Two other cases are cited by the opinion which show the misconception of the law. One is State v. Lambert, 318 Mo. 705, where the misconception is apparent because a passage from it is quoted which is directly contrary to the ruling here. Error was assigned (p. 709), because the court failed to tell the jury that they had a right to find one of the defendants guilty and one not guilty, or both guilty or both not guilty, if the evidence warranted it. That was the error on which the judgment was reversed. It didn't go merely to the assessment of punishment. It went to the determination of theguilt or innocence of both defendants who were on trial, a constitutional jury function. What has that principle to do with the matter under consideration here — the fixing of punishmentafter the finding of guilt? It is true the court in that case finds there was error because the jury found the defendants guilty and assessed their punishment jointly instead of separately as required by statute. [Sec. 3702, R.S. 1919.] That, of course, was error which could be avoided on another trial, but the opinion did not reverse the judgment on that ground. It says of that error, l.c. 711:

"While Section 4048 (Sec. 3704, R.S. 1929). . . . empowers the trial court to assess the punishment in certain cases, this power can only be properly exercised within the limitations of the statute and in the absence of prejudicial error preceding therendition of the verdict."

The only error "preceding the verdict" was the failure to instruct that the jury might find one defendant guilty and the other not guilty.

Some confusion arises when the court on the same page used the expression "joint findings of guilt" when plainly "joint assessments of punishments" was meant — a confusion which follows the majority opinion here all through. But the matter was cleared up when the court said, l.c. 712:

"The facts in this case may therefore be thus summarized: the defendants were jointly charged and thus tried; they were entitled, as a matter of right, to an instruction defining the power of the jury in determining as to their guilt, not jointlybut severally. They were not given this right. A joint verdict,both as to their guilt and the extent of their punishment, was rendered. The trial court, ignoring their right as to theinstruction to which they were entitled, proceeded on the assumption of the prior regularity of the proceeding to correct the verdict and assess their punishment. This was in excess of the court's authority and did not minimize the injurious effect of the failure to properly instruct the jury." (Italics mine.)

How can this be tortured into meaning that the judgment was reversed for any reason other than failure to instruct on thedetermination of guilt separately and not jointly.

In the other case cited in the opinion, State v. Craft, 23 S.W.2d 183, l.c. 186, the principle there stated is clear:

"The defendant complains of the State's instructions on the ground that it did not afford the jury an opportunity to convict one defendant and acquit the other, or find both guilty or not guilty, as the evidence warranted it" — citing the Lambert case — a matter that went directly to the guilt or innocence of one or both of the defendants. It had nothing to do with assessment of punishment.

Those two cases are cited in the opinion here in support of the proposition that the jury must first assess the punishment, and if they fail to do so on an erroneous instruction the court is powerless to do it. The majority opinion here was no doubt influenced by the misconception of what was decided in those two cases.

In the Lambert case the opinion cites approving State v. Carroll, 288 Mo. 392, with which the majority opinion disagrees. There (l.c. 408-410), the only error complained of in the verdict was the alleged violation of Section 4046, Revised Statutes 1919 (Sec. 3702, R.S. 1929), in assessing the punishment, not separately. There was no complaint that the jury found the defendants guilty jointly.

It should be noted here that Section 3702, Revised Statutes 1929, requires, where several defendants are jointly tried, that in case of conviction the punishment of each must be separately assessed. There is no requirement that there shall be separateverdicts of guilty. The law requires an instruction that the jury may find one or more of several defendants guilty and the rest not guilty. Having done that, they may state the finding jointly or in one verdict, or separately, provided they separately state the punishment, or fail to state it at all. The verdict in the Carroll case, 288 Mo. l.c. 400, seems to comply with the law. The court might very well have affirmed the judgment without remanding. Perhaps the opinion there should have pointed out the distinction between the determination of guilt and the assessment of punishment, and that the only error, if any, in the verdict was in the latter.

The court called attention to the statute which provided that upon conviction the punishment of each must be assessed separately, citing the Statute (now Section 3704) which provides that if the jury do not assess the punishment the court shall assess the punishment, and said:

"It is held that where a jury renders a verdict, such as rendered in this case, fixing a joint punishment for crime against several defendants, the error may be corrected if the trial court, in pronouncing the sentence and judgment against the defendant, assess separately their punishments." Citing numerous cases.

The opinion then quoted State v. Person, 234 Mo. l.c. 268, where the latter recited a passage from State v. Gordon,153 Mo. 576:

"The court, therefore, should either have refused to receive the verdict and suggested its being put in proper form or failing in this should itself have assessed and declared the punishment . . . which the jury in this case, by their defective verdict, failed to do.

"For this cause alone the judgment must be reversed and the cause remanded, with directions to the trial court to bring thedefendant before it, and having done so to proceed to assess anddeclare his punishment." (Italics mine.)

That was the order made in the Carroll case. That is the order that should be made here. The Lambert case and the Craft case were reversed solely on the ground that the jury was not authorized to find separately as to the guilt or innocence of each of the two defendants. Apparently there was no instruction to the jury in the Carroll case that they must assess the punishment separately just as in this case there was no instruction fixing the minimum punishment. So far as the justice of the matter is concerned, so far as the law is concerned, there is no distinction between the different kinds of failure to instruct the jury as to the matter of punishment. How is it a more serious injury to the defendant to have the court fail to instruct on the minimum punishment in the penitentiary and the failure of the court to instruct that they must assess the punishment separately if they assess it at all? The Carroll case was followed in case of State v. Miller, 285 S.W. 90. There again the only point considered was that the punishments of defendants were assessed jointly, and because the record shows that thecourt separately fixed the punishment the requirements of the statute were satisfied. The jury were erroneously instructed in regard to it; if they found the defendants guilty, to assesstheir punishment. (Not separately.)

In State v. Thornhill, 174 Mo. 364, the jury found both defendants guilty of larceny and assessed their punishment jointly at two years in the penitentiary. It is not stated, but likely that the jury were not instructed that they must assess the punishments separately. They would not be likely to disobey a direct instruction to that effect. The court said (l.c. 371), opinion by Judge JAMES B. GANTT, referring to the case of State v. Gordon, supra:

"This ruling then and now commends itself for the reason that as no error had occurred up to the point of assessing the punishment no rule of right or policy demanded that the whole case should be retried when the statute furnished its own corrective for such irregularity."

In this case the verdict does not fall within Section 3705, Revised Statutes 1929, where the punishment assessed was below the minimum punishment, because the law allowed the punishment for the offense at fine or imprisonment in the county jail — a still lower punishment. It would not come under Section 3706, because it was not greater than the highest punishment allowed, which was two years in the penitentiary. The verdict was one year in the penitentiary, which the law did not allow. It comes within Section 3704, where the jury finds a verdict and assesses a punishment not authorized by law. The court then should have assessed a lawful punishment. The case should be remanded to the trial court that it may perform that duty.

If the majority opinion is to prevail we necessarily by implication overrule the Carroll case, the Thornhill case, the Miller case, the Emery case, the Hubbs case, and others.

The effect would be more than that. The ruling in the majority opinion is purely technical, disregarding the merits of the case, the question of guilt already established with no error. This court in the past few years has been making history in getting away from technical constructions which hinder the administration of justice in criminal cases. The tendency has been to adjudge a case upon its merits. The ruling in this case is a recession; we go back a half generation to the time when a small technical error not affecting the merits or the question of guilt or innocence was permitted to impose upon the State a retrial or to work an absolute reversal of a case which already had been tried without error upon its merits.

For these reasons I dissent. Atwood, C.J., and Gantt, J., concur.