A general verdict of acquittal, in a court having jurisdiction
of the cause and of the defendant, upon the issue of not guilty to
an indictment undertaking to charge murder, and not objected to
before verdict as insufficient in that respect, is a bar to a
subsequent indictment against him for the same killing.
A verdict in a case submitted to the jury on Saturday may be
received, and the jury discharged, on Sunday.
A defendant in a criminal case who procures a verdict and
judgment against him to be set aside by the court may be tried anew
upon the same or another indictment for the same offence of which
he was convicted.
Whether defendants jointly indicted shall be tried together or
separately rests in the sound discretion of the trial court.
After a witness in support of a prosecution has testified, on
cross-examination, that he had, at his own expense, employed
another attorney to assist the attorney for the government, the
question "How much do you pay him?" may be excluded as
immaterial.
Upon a trial for murder by shooting, in different parts of the
body, with a gun loaded with buckshot, and after the introduction
of conflicting evidence upon the question whether a gun found in
the defendant's possession would scatter buckshot, it is within the
discretion of the court to decline to permit the gun to be taken
out and shot off in the presence of a deputy marshal in order to
test how it threw such shot.
An indictment for murder which alleges that A, at a certain time
and place, by shooting with a loaded gun, inflicted upon the body
of B "a mortal wound, of which mortal wound the said B did
languish, and, languishing, did then and there instantly die"
unequivocally alleges that B died of the mortal wound inflicted by
A, and that B died at the time and place at which the mortal wound
was inflicted.
Page 163 U. S. 633
The court is not bound as matter of law to set aide a verdict of
guilty in capital case because no special oath was administered to
the officer in charge of the jury if he was a deputy marshal who
had previously taken the oath of office and no objection to his
taking charge of the jury without a new oath was made at any stage
of the trial, and the jury were duly cautioned by the court not to
separate or to allow any other person to talk with them about the
case, and there is nothing tending to show that the jury were
exposed to any influence that might interfere with the impartial
performance of their duties or prejudice the defendant.
This was an indictment for murder, returned at April term, 1891,
of the Circuit Court of the United States for the Eastern District
of Texas. The case is stated in the opinion.
MR. JUSTICE GRAY delivered the opinion of the court.
At October term, 1889, of the Circuit Court of the United States
for the Eastern district of Texas, the grand jury returned an
indictment against Millard Fillmore Ball, John C. Ball, and Robert
E Boutwell for the murder of William T. Box; alleging that the
defendants, being white men and not Indians, on June 26, 1889, in
Pickens county, in the Chickasaw Nation, in the Indian Territory,
did unlawfully and feloniously, and with their malice aforethought,
and with a deadly weapon, to-wit, a gun, held in their hands and
loaded and charged with gunpowder and leaden balls, make an assault
upon the body of William T. Box, and
"did shoot off and discharge the contents of said gun in and
upon the body of said William T. Box, inflicting thereon ten mortal
wounds, of which mortal wounds the said William T. Box did
languish, and, languishing, did die."
Upon that indictment, the three defendants were arraigned, and
pleaded not guilty, and were tried together upon the issues so
joined. The trial began on Wednesday, October 30,
Page 163 U. S. 664
1889, and proceeded from day to day until Saturday, November 2,
when the jury retired to consider of their verdict; and, no verdict
having been returned at the usual hour of adjournment, the court
was kept open to receive the verdict. On Sunday, November 3, 1889,
the jury returned a verdict as follows:
"We, the jury, find the defendants J. C. Ball and R. E. Boutwell
guilty as charged in this indictment, and we find M. Fillmore Ball
not guilty."
The court on the same day made the following order:
"It is therefore considered by the court that the defendants J.
C. Ball and R. E. Boutwell are guilty as charged in the indictment
herein, and as found by the jury; and it is ordered that they be
remanded to the custody of the marshal, and be by him committed to
the county jail of Lamar county to await the judgment and sentence
of the court. It is further ordered that the defendant Mr. F. Ball
be discharged, and go hence without day."
Afterwards, at the same term, John C. Ball and Robert E.
Boutwell were adjudged guilty, and sentenced to death, and sued out
a writ of error from this court, and, in the assignment of errors
filed by them in the Circuit Court, as appears by the record
transmitted to this court in that case, specified, among other
things, "because no legal indictment was returned into court
against respondents," in that the indictment on which they were
tried "nowhere alleges when and where said William T. Box died";
and,
"for the errors stated and apparent upon the record herein,
respondents pray that the judgment be reversed, and the cause
remanded for a new trial."
And the brief then filed in their behalf concluded by submitting
that the judgment ought to be reversed and the indictment
dismissed.
Upon that writ of error this Court, at October Term, 1890, held
that that indictment, although sufficiently charging an assault,
yet, by reason of failing to aver either the time or the place of
the death of Box, was fatally defective, and would not support a
sentence for murder, and therefore reversed the judgments against
John C. Ball and Robert E. Boutwell and remanded the case, with
directions to quash the indictment, and to take such further
proceedings in relation to them as to
Page 163 U. S. 665
justice might appertain.
Ball v. United States,
140 U. S. 118,
140 U. S.
136.
At April term, 1891, of the Circuit Court, that indictment was
dismissed; and the grand jury returned against all three defendants
a new indictment (being the one now before the court), like the
former one, except that after charging the assault, with malice
aforethought, and with a loaded gun, upon Box on June 26, 1889, in
Pickens county, in the Indian Territory, it went on to charge that
the three defendants
"did then and there shoot off and discharge the contents of said
gun at, in, and upon the body of said William T. Box, inflicting
thereon a mortal wound, of which mortal wound the said William T.
Box did languish, and languishing did then and there instantly die,
and did then and there die within a year and a day after the
infliction of the said mortal wound as aforesaid."
To this indictment the defendant Millard F. Ball filed a plea of
former jeopardy and former acquittal, relying upon the trial, the
verdict of acquittal, and the order of the court for his discharge,
upon the former indictment, a certified copy of the record of the
proceedings upon which was annexed to, and made part of, his
plea.
The defendants John C. Ball and Boutwell filed a plea of former
jeopardy, by reason of their trial and conviction upon the former
indictment, and of the dismissal of that indictment.
Both those pleas were overruled by the court, and the three
defendants then severally pleaded not guilty.
At the trial. it appeared that William T. Box was killed on June
26, 1889. The defendants offered in evidence the record of the
proceedings upon the former indictment, and it was admitted by all
parties that the offense charged in the former indictment and that
charged in the present indictment was one and the same transaction
and offense, to-wit, the killing of Box by the three defendants;
that the defendants in the two indictments were the same persons;
and that no writ of error was ever sued out upon the judgment or
order entered upon the former indictment, as to Millard F.
Ball.
The Circuit Court, among other instructions, instructed the jury
to find against both pleas of former jeopardy, because
Page 163 U. S. 666
this court had decided that the former indictment was
insufficient as an indictment for murder. The jury returned a
verdict of guilty of murder against all three defendants. Each of
them was adjudged guilty, accordingly, and sentenced to death, and
thereupon they sued out this writ of error.
The first matter to be considered is the effect of the acquittal
of Millard F. Ball by the jury upon the trial of the former
indictment.
In England, an acquittal upon an indictment so defective that if
it had been objected to at the trial, or by motion in arrest of
judgment, or by writ of error, it would not have supported any
conviction or sentence, has generally been considered as
insufficient to support a plea of former acquittal. 2 Hale, P.C.
248, 394; 2 Hawk. P.C. c. 35, § 8; 1 Starkie, Cr.Pl. (2d Ed.) 320;
1 Chit.Cr.Law, 458; Archb.Cr.Pl. & Ev. (19th Ed.) 143; 1
Russell on Crimes (6th Ed.) 48. And the general tendency of opinion
in this country has been to the same effect. 3 Greenl.Ev. § 35; 1
Bishop's Crim.Law, § 1021, and cases there cited.
The foundation of that doctrine is
Vaux's Case, 4 Coke
44, in which William Vaux, being duly indicted for the murder of
Nicholas Ridley by persuading him to drink a poisoned potion,
pleaded a former acquittal, the record of which set forth a similar
indictment alleging that Ridley, not knowing that the potion was
poisoned, but confiding in the persuasion of Vaux, took and drank
(without saying "took and drank said potion"); a plea of not
guilty; a special verdict finding that Ridley was killed by taking
the poison, and that Vaux was not present when he took it; and a
judgment rendered thereon that the poisoning of Ridley, and
persuading him to take the poison, as found by the verdict, was not
murder, and that the defendant go without day, --
eat sine
die. Upon a hearing on the plea of
autrefois acquit,
the Court of Queen's Bench was of opinion that Vaux was a
principal, although not present when Ridley took the poison, but
that the indictment was insufficient for not expressly alleging
that Ridley drank the poison, and that, "because the indictment in
this case was insufficient, for this reason he was not
legitimo
Page 163 U. S. 667
modo acquietatus," "nor was the life of the party, in
the judgment of the law, ever in jeopardy."
Yet the decision in
Vaux's Case was treated both by
Lord Coke and by Lord Hale as maintainable only upon the ground
that the judgment upon the first indictment was
quod eat sine
die, which might be given as well for the insufficiency of the
indictment as for the defendant's not being guilty of the offense,
and Lord Hale was clearly of opinion that a judgment
quod eat
inde quietus could not go to the insufficiency of the
indictment, but must go to the matter of the verdict, and would be
a perpetual discharge. 3 Inst. 214; 2 Hale, P.C. 394, 395. And Mr.
Starkie has observed:
"The doctrine expounded in this case does not appear to consist
with the general principle on which the plea of
autrefois
acquit is said to depend, since an acquittal upon a special
verdict would leave the defendant exposed to a second prosecution
whenever a formal flaw could be detected in the first indictment at
any subsequent period."
1 Starkie, Cr.Pl. 320, note.
In the leading American case of
People v. Barrett, 1
Johns. 66, while a majority of the court, consisting of Chief
Justice Kent and Justices Thompson and Spencer, followed the
English authorities, Justices Livingston and Tompkins strongly
dissented; and their reasons were fully stated by Mr. Justice
Livingston, who, after distinguishing cases in which upon the first
trial there had been no general verdict of acquittal by the jury,
but only a special verdict, upon which the court had discharged the
defendant, as well as cases in which the defendant himself had
suggested the imperfection in the first indictment, and thereupon
obtained judgment in his favor, said:
"These defendants have availed themselves of no such
imperfection, if any there were, nor has any judgment to that
effect been pronounced. This case, in short, presents the novel and
unheard-of spectacle of a public officer, whose business it was to
frame a correct bill, openly alleging his own inaccuracy or neglect
as a reason for a second trial, when it is not pretended that the
merits were not fairly in issue on the first. That a party shall be
deprived of the benefit of an acquittal by a jury on a suggestion
of this kind, coming, too, from the officer
Page 163 U. S. 668
who drew the indictment, seems not to comport with that
universal and humane principle of criminal law 'that no man shall
be brought into danger more than once for the same offense.' It is
very like permitting a party to take advantage of his own wrong. If
this practice be tolerated, when are trials of the accused to end?
If a conviction take place, whether an indictment be good or
otherwise, it is ten to one that judgment passes; for, if he read
the bill, it is not probable he will have penetration enough to
discern its defects. His counsel, if any be assigned to him, will
be content with hearing the substance of the charge, without
looking further; and the court will hardly, of its own accord,
think it a duty to examine the indictment to detect errors in it.
Many hundreds, perhaps, are now in the state prison on erroneous
indictments, who, however, have been fairly tried on the merits.
But reverse the case, and suppose an acquittal to take place. The
prosecutor, if he be dissatisfied and bent on conviction, has
nothing to do but to tell the court that his own indictment was
good for nothing; that it has no venue, or is deficient in other
particulars, and that therefore he has a right to a second chance
of convicting the prisoner, and so on,
toties
quoties."
1 Johns. 74.
In
Commonwealth v. Purchase, 2 Pick. 521, 526, Chief
Justice Parker, speaking of the doctrine which allows a man to be
tried again after being acquitted on an indictment substantially
bad, said that "ingenuity has suggested that he never was in
jeopardy, because it is to be presumed that the court will discover
the defect in time to prevent judgment," but that this "is bottomed
upon an assumed infallibility of the courts, which is not admitted
in any other case."
In the Revised Statutes of Massachusetts of 1836, c. 123, §§ 4,
5, provisions were inserted which, as the commissioners who
reported them said, were
"intended to define and determine, as far as may be, the cases
in which a former acquittal shall or shall not be a bar to a
subsequent prosecution for the same offense,"
and were as follows:
"No person shall be held to answer on a second indictment, for
any offence of which he has been acquitted by the jury upon the
facts and
Page 163 U. S. 669
merits, on a former trial, but such acquittal may be pleaded by
him in bar of any subsequent prosecution for the same offence,
notwithstanding any defect in the form or in the substance of the
indictment on which he was acquitted. If any person, who is
indicted for an offence shall on his trial be acquitted upon the
ground of a variance between the indictment and the proof, or upon
any exception to the form or to the substance of the indictment, he
may be arraigned again on a new indictment, and may be tried and
convicted for the same offence, notwithstanding such former
acquittal."
Similar statutes have been passed in other states. 1
Lead.Cr.Cas. (2d Ed.) 532.
The American decisions in which the English doctrine has been
followed have been based upon the English authorities, with nothing
added by way of reasoning.
After the full consideration which the importance of the
question demands, that doctrine appears to us to be unsatisfactory
in the grounds on which it proceeds, as well as unjust in its
operation upon those accused of crime, and, the question being now
for the first time presented to this court, we are unable to resist
the conclusion that a general verdict of acquittal upon the issue
of not guilty to an indictment undertaking to charge murder, and
not objected to before the verdict as insufficient in that respect,
is a bar to a second indictment for the same killing.
The Constitution of the United States, in the Fifth Amendment,
declares, "nor shall any person be subject to be twice put in
jeopardy of life or limb." The prohibition is not against being
twice punished, but against being twice put in jeopardy; and the
accused, whether convicted or acquitted, is equally put in jeopardy
at the first trial. An acquittal before a court having no
jurisdiction is, of course, like all the proceedings in the case,
absolutely void, and therefore no bar to subsequent indictment and
trial in a court which has jurisdiction of the offense.
Commonwealth v. Peters, 12 Metc. 387; 2 Hawk.P.C. c. 35, §
3; 1 Bishop's Crim. Law, § 1028. But, although the indictment was
fatally defective, yet, if the court had jurisdiction of the cause
and of the party, its judgment
Page 163 U. S. 670
is not void, but only voidable by writ of error, and, until so
avoided, cannot be collaterally impeached. If the judgment is upon
a verdict of guilty, and unreversed, it stands good, and warrants
the punishment of the defendant accordingly, and he could not be
discharged by writ of habeas corpus.
Ex parte Parks,
93 U. S. 18. If the
judgment is upon an acquittal, the defendant, indeed, will not seek
to have it reversed, and the government cannot.
United States
v. Sanges, 144 U. S. 310. But
the fact that the judgment of a court having jurisdiction of the
case is practically final affords no reason for allowing its
validity and conclusiveness to be impugned in another case.
The former indictment set forth a charge of murder, although
lacking the requisite fullness and precision. The verdict of the
jury, after a trial upon the issue of guilty or not guilty,
acquitted Millard F. Ball of the whole charge, of murder, as well
as of any less offense included therein. Rev.Stat. § 1035. That he
was thereupon discharged by the Circuit Court by reason of his
acquittal by the jury, and not by reason of any insufficiency in
the indictment, is clearly shown by the fact that the court, by the
same order which discharged him, committed the other defendants,
found guilty by the same verdict to custody to await sentence, and
afterwards adjudged them guilty and sentenced them to death upon
that indictment. Millard F. Ball's acquittal by the verdict of the
jury could not be deprived of its legitimate effect by the
subsequent reversal by this court of the judgment against the other
defendants upon the writ of error sued out by them only.
It is true that the verdict finding John C. Ball and Robert E.
Boutwell guilty as charged in the indictment, and finding Millard
F. Ball not guilty, was returned on Sunday; as well as that the
order thereupon made by the court, by which it was considered that
the first two defendants were guilty as charged in the indictment
and found by the jury, and be remanded to custody to await the
judgment and sentence of the court, and that Millard F. Ball be
discharged and go without day, was made on the same day. That
order, indeed, as already
Page 163 U. S. 671
adjudged by this court, could not have effect as a judgment
against the two defendants who had been convicted, because no
judgment can lawfully be entered on Sunday.
Ball v. United
States, 140 U. S. 118,
140 U. S. 131;
3 Bl.Comm. 277. But, when a case is committed to the jury on
Saturday, their verdict may be received and the jury discharged on
Sunday. This has been generally put upon the ground that the
reception of the verdict and discharge of the jury is but a
ministerial act, involving no judicial discretion, or that it is an
act of necessity; and it certainly tends to promote the observance
of the day more than would keeping the jury together until Monday.
Hoghtaling v. Osborn, 15 Johns. 119;
Van Riper v. Van
Riper, 4 N.J.Law 156;
Huidekoper v. Cotton, 3 Watts
56;
Baxter v. People, 3 Gilman 368, 385;
Hiller v.
English, 4 Strob. 486;
Cory v. Silcox, 5 Indiana 370;
Webber v. Merrill, 34 N.H. 202;
Reid v. State, 53
Alabama 402;
Meece v. Commonwealth, 78 Kentucky 586, 588;
State v. Ford, 37 La.Ann. 443, 466.
As to the defendant who had been acquitted by the verdict duly
returned and received, the court could take no other action than to
order his discharge. The verdict of acquittal was final, and could
not be reviewed, on error or otherwise, without putting him twice
in jeopardy, and thereby violating the constitution. However it may
be in England, in this country, a verdict of acquittal, although
not followed by any judgment, is a bar to a subsequent prosecution
for the same offense.
United States v. Sanges,
144 U. S. 310;
Commonwealth v. Tuck, 20 Pick. 356, 365;
West v.
State, 22 N.J.Law, 212, 231; 1 Lead.Cr.Cas. 532.
For these reasons, the verdict of acquittal was conclusive in
favor of Millard F. Ball, and, as to him, the judgment must be
reversed, and judgment rendered for him upon his plea of former
acquittal.
It therefore becomes unnecessary to consider any of the other
questions raised at the trial which affect Millard F. Ball only,
and we proceed to consider those affecting the other defendants,
John C. Ball and Robert E. Boutwell.
Their plea of former conviction cannot be sustained,
because,
Page 163 U. S. 672
upon a writ of error sued out by themselves, the judgment and
sentence against them were reversed, and the indictment ordered to
be dismissed. How far, if they had taken no steps to set aside the
proceedings in the former case, the verdict and sentence therein
could have been held to bar a new indictment against them need not
be considered, because it is quite clear that a defendant who
procures a judgment against him upon an indictment to be set aside
may be tried anew upon the same indictment, or upon another
indictment, for the same offense of which he had been convicted.
Hopt v. Utah, 104 U. S. 631,
110 U. S. 110 U.S.
574, and
120 U. S. 120 U.S.
430;
Regina v. Drury, 3 Cox Crim.Cas. 544;
S.C. 3
Car. & Kirw. 193;
Commonwealth v. Gould, 12 Gray, 171.
The court therefore rightly overruled their plea of former
jeopardy, and cannot have prejudiced them by afterwards permitting
them to put in evidence the former conviction, and instructing the
jury that the plea was bad.
These two defendants moved that they be tried separately from
Millard F. Ball, because he had been previously acquitted; because
the government relied on his acts and declarations made after the
killing, and not in their presence or hearing; and because he was a
material witness in their behalf. But the question whether
defendants jointly indicted should be tried together or separately
was a question resting in the sound discretion of the court below.
United States v.
Marchant, 12 Wheat. 480. It does not appear that
there was any abuse of that discretion in ordering the three
defendants to be tried together, or that the court did not duly
limit the effect of any evidence introduced which was competent
against one defendant, and incompetent against the others.
See
Sparf v. United States, 156 U. S. 51,
156 U. S. 58. On
the contrary, upon the offer by the United States of evidence of
declarations made by Millard F. Ball after the killing, and not in
the presence of the other defendants, and upon an objection to its
admissibility against them, the court at once said, in the presence
of the jury, that, of course, it would be only evidence against
him, if he said anything; and the court was not afterwards
requested to make any further ruling upon this point.
Page 163 U. S. 673
The exception to the restriction of the cross-examination of
Cross and Berney, two material witnesses for the prosecution,
cannot be sustained. The court permitted the defendants' counsel,
for the purpose of showing bias and prejudice on the part of these
witnesses, to ask them whether they had, at their own expense,
employed another attorney to assist the district attorney in the
prosecution of this case, and they frankly answered that they had.
That fact having been thus proved and admitted, the further
question to one of them, "How much do you pay him?" might properly
be excluded by the presiding judge as immaterial.
The government introduced evidence tending to show that Box was
killed with low-mold buckshot, as he was going home through a
cornfield late at night; that he had 12 wounds on his breast,
collar bone, and hips; that gun wadding was found close to his
body; that he was shot with a double barreled, muzzle-loading gun
belonging to the defendant John C. Ball, and which had been in the
marshal's exclusive control since the arrest of the defendants; and
that this gun scattered low-mold buckshot badly. The defendants
introduced evidence that the gun did not scatter such shot, and
requested permission of the court to take the gun out and shoot it
off in the presence of a deputy marshal, in order to test how it
threw such shot. The court denied the request, and the defendants
excepted to the denial. The granting or refusal of such a request,
first made in the midst of the trial, was clearly within the
discretion of the court.
The only grounds of the motion in arrest of judgment which were
argued in this court were that the indictment did not allege that
Box died of the wound charged to have been inflicted upon his body
by the defendants, nor that he died at a place within the
jurisdiction of the court. But the indictment alleged that the
defendants, in Pickens county, in the Indian Territory, on June 26,
1889, by shooting with a loaded gun, inflicted upon the body of Box
"a mortal wound, of which mortal wound the said William T. Box did
languish, and languishing did then and there instantly die." It was
thus distinctly and unequivocally alleged that Box died of the
Page 163 U. S. 674
mortal wound alleged to have been inflicted by the defendants,
and that he died at the time and place at which the mortal wound
was inflicted.
The court overruled a motion of the defendants for a new trial,
made upon the ground that the jury, from the time they were
impaneled until they returned their verdict, were not in charge of
a proper officer. At the hearing of this motion, it was admitted
that the jury, during all the trial, were in charge of a deputy
marshal of the United States for the district, who was not sworn as
bailiff of this jury, and the only oath ever administered to whom
was as deputy marshal, many months before the trial, and
"that the court instructed the jury in this case that they must
not separate, must not talk to each other, and must not allow
themselves to be talked to by any party on the outside, about this
case."
It would have been according to the more usual and regular
practice to administer a special oath to the officer put in charge
of a jury. But the jury were in charge of a deputy marshal who had,
as such, taken an oath that he would "in all things well and truly,
and without malice or partiality, perform the duties of the office
of marshal's deputy." Rev.Stat. § 782. No objection to his taking
charge of the jury without a new oath was made at any stage of the
trial. The jury were duly cautioned by the court not to separate,
nor to allow any other person to talk to them about the case; and
there was nothing tending to show that the jury were exposed to any
influence that might interfere with the impartial performance of
their duties, or in any way prejudice the defendant. Such being the
facts, the court was not obliged, as matter of law, to set aside
the verdict because no special oath had been administered to the
officer in charge of the jury.
No other question of law affecting the defendants John C. Ball
and Robert E. Boutwell is presented by the copy of record submitted
to this court, and which, by stipulation of counsel, has been
agreed to contain everything that it material.
Judgment reversed as to Millard F. Ball, and affirmed as to the
other defendants.