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

By information in the Circuit Court of Howell County it was charged that the defendant, Rhode Bevins, on a date named, unlawfully, wilfully and feloniously did have upon and about his person a certain firearm, to-wit, a revolving pistol, while the said Rhode Bevins was intoxicated. The prosecution was under Section 3275, Revised Statutes 1919, now Section 4029. Revised Statutes 1929, which, among other things, makes it an offense for any person to have "in his possession" any firearm when intoxicated. Defendant was found guilty by the jury, and was by the court sentenced to two years' imprisonment in the penitentiary, and he appealed.

In the view we take of the case it is unnecessary to refer to the evidence further than to say that it was sufficient to sustain the verdict of guilty. The information was not assailed and we regard it as sufficient. We find no substantial errors in the record except those to be hereinafter noted.

The jury returned the following verdict:

"We, the Jury, find the Defendant, Rhode Bevins guilty as charged in the Information and we do assess his punishment at one year in the State Penitentiary."

The record shows that when the verdict was returned the following occurred:

BY THE COURT: "Gentlemen, the verdict you rendered in fixing the punishment at one year in the penitentiary, is that your verdict? So say you all?"

The jurors answered in the affirmative and the court at once discharged the jury. The defendant objected and excepted to the verdict. This record entry then appears:

"Whereupon the court by reason of the verdict being for less than two years, to-wit, one year, does assess the punishment at two years' imprisonment in the penitentiary."

Defendant objected and excepted to that action of the court.

The court had given three instructions. No. 1 declared that it was the duty of the jury to receive the court's instructions as the law of the case, hypothesized the facts necessary to be found in order to convict, and directed the jury, in case of conviction, to assess defendant's punishment "at imprisonment in the state penitentiary not exceeding two years or by a fine of not less than $100 nor more than $1000, or by imprisonment in the county jail not less than fifty days nor more than one year, or by both such fine and imprisonment." The other two instructions dealt with credibility of witnesses, presumption of innocence and reasonable doubt, and need not be noticed. No instruction was given informing the jury that the minimum imprisonment in the penitentiary that could be assessed was two years, which is the minimum term in the penitentiary that can be given in any case. [Sec. 4457, R.S. 1929.]

In due time defendant filed his motion for new trial, wherein, among other things, he charged error in that the court failed to instruct the jury that two years was the least imprisonment in the penitentiary that could be assessed and in discharging the jury without instructing them to that effect "instead of instructing the jury as the court did in effect that they could give the defendant any time in the penitentiary not to exceed two years." It is also alleged that the court erred in increasing the punishment as fixed by the jury.

Appellant has filed no brief and is not represented by counsel in this court. We look to his motion for new trial for alleged errors of which he complains. It does not appear from the bill of exceptions that he objected or saved exceptions to the giving of the instructions which were given or that he requested any instructions or excepted at the time to the court's failure to instruct on all the law of the case. It is the duty of the court, however, without request, to instruct the jury upon all questions of law "necessary for their information in giving their verdict." [Sec. 3681, R.S. 1929.] And it is now settled that a defendant in a criminal case is entitled to have considered on appeal his contention that the court failed so to instruct where the omission was of an essential part of the law of the case necessary for the proper information of the jury, if in his motion for new trial he has properly called the trial court's attention to the alleged omission, even though he did not request an instruction on the subject, nor except, at the time, to the court's failure to give one. [State v. Burrell, 298 Mo. 672,252 S.W. 709; State v. Gurnee, 309 Mo. 6, 14, 274 S.W. 58; State v. Harrison (Mo.), 24 S.W.2d 985.] In this case appellant in his motion for new trial sufficiently pointed out the failure of the court to inform the jury that the least (as well as in this case the greatest) term of imprisonment in the penitentiary that could be assessed was two years. For reasons which will be apparent as we proceed we regard the omission as a failure to instruct on a part of the law necessary for the information of the jury in giving their verdict and therefore under the rule above stated the error is presented for review on this appeal.

Our code of criminal law and procedure contemplates that on trial to a jury the jury shall determine and assess the punishment within the limits prescribed by the statute, except where the statute expressly authorizes the court to do so or where by statute a specific punishment is fixed with no alternative.

Section 3703, Revised Statutes 1929, provides that "where by law there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted the jury may assess and declare the punishment in their verdict and the court shallrender a judgment according to such verdict, except ashereinafter provided." (Italics ours.) The next four sections designate the exceptions.

By Section 3704 it is provided that where the jury agree upon a verdict of guilty but fail to agree upon the punishment to be inflicted or do not declare such punishment by their verdict, and where the jury find a verdict of guilty and assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment and render judgment accordingly.

By Section 3705 it is provided that if the jury assess a punishment, either of imprisonment or fine, below the limit prescribed for the offense, the court shall pronounce sentence and render judgment according to the lowest limit prescribed by law in such case.

Section 3706 provides that if the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.

By Section 3707 the court is authorized to reduce the extent or duration of the punishment assessed by the jury if in its opinion the conviction is proper but the punishment assessed is greater than should be inflicted under the circumstances.

It will be noticed that Section 3703 says that the jury "may" assess and declare the punishment and the court "shall" render judgment accordingly, "except as hereinafter provided." The word "may" is interpreted to mean "shall" when referring "to a power given to public officers, and which concerns the public interest and the rights of third persons, who have a claim de jure that the power shall be exercised in this manner." [State ex rel. Vernon County v. King, 136 Mo. 309, 319, 36 S.W. 681 and 38 S.W. 80.] But without resort to that rule of construction we think it apparent that the purpose of the foregoing statutory provisions was to place upon the jury the duty, not merely to grant the privilege, of determining the punishment if they can agree thereon and to deny to the court authority to determine the punishment except where the jury has failed to perform the duty primarily devolving upon it, giving the court the further power, in its discretion, of reducing, but not increasing, a punishment legally assessed by the jury. Correlatively, a defendant would have the right to have the jury perform the duty so imposed by the statute, unless we assume that the duty was imposed for the sole benefit of the State with no concern for the defendant, which we think should not be assumed. Of course the provision cannot be regarded as a privilege granted for the benefit of the jury.

Not only do the statutory provisions referred to clearly point to such legislative intent, but expressions of this court indicate that the court has always so understood and construed them. These statutory provisions in substantially their present form have been in force for a great many years. [See State v. Hamey, 168 Mo. 167, 67 S.W. 620.] In that case the constitutionality of a statute giving the court authority to fix the punishment on conviction of a certain felony (carnal knowledge of a female of previous chaste character) was at issue, it being contended that the statute, in giving the court the power to fix the punishment, violated the defendant's constitutional right of trial by jury. Two members of the court as then constituted argued strongly that the statute did so violate the defendant's constitutional rights. The majority of the court en banc held (correctly, we think) that the right of a defendant to have the jury assess the punishment was not a constitutional right. But, as we understand the decision, it clearly recognizes that the statutory provisions above referred to, then and long prior thereto in force, imposed upon the jury the duty of fixing the punishment, giving the defendant the right to have the jury do so if they could agree, but held that since the duty was imposed by statute and the defendant's right was not a constitutional right the statute could be changed.

In the early case of Fooxe v. State, 7 Mo. 502, the court said:

"This law imposes on the jury the duty of inflicting the punishment, nor has the court any right to fix the punishment, unless the jury disagree, or do not by their verdict inflict any punishment. But the court in this case, told the jury in substance, that this was no part of their duty, and they had authority to bring in a general verdict. Whereas the power of the court is merely contingent, not primary, and only to be exercised where a failure of duty, or a disagreement on the part of the jury, requires its exercise."

The applicable statute law was substantially the same then as now. That case was followed in State v. Gilbreath, 130 Mo. 500, 32 S.W. 1023, in which the court gave in the first instance, with other instructions, one telling the jury if they found defendant guilty and could not agree on the punishment they should so state in their verdict. Of that instruction this court said:

"The court erred in giving instruction number 4. The law devolved upon the jury the duty of affixing the punishment of the defendant. The court invited the jury to disregard that portion of their duty by giving this instruction."

In State v. Hubbs, 294 Mo. 224, 242 S.W. 675, the soundness of the rule announced in the Fooxe case on the facts therein was questioned, the jury in the Fooxe case having announced to the court that they could not agree before the instruction was given. But there was no criticism of the statement that the duty of inflicting the punishment devolved primarily upon the jury. On the contrary, the correctness of that statement was directly recognized, the court saying, 294 Mo. l.c. 233: "It is the primary duty of the jury to assess the punishment. To permit the court in the first instance to point out the way for the jury to avoid its duty in this regard, as was done in the Gilbreath case, may well be regarded as contrary to the policy of the law."

Many more expressions of this court might be cited indicating the view that the duty of fixing the punishment where there is an alternative is by statute placed primarily upon the jury and that the court may exercise that power only when the jury has failed to agree or properly to discharge its duty in that regard. We have found none to the contrary. The duty being thus imposed upon the jury the defendant certainly has a corresponding right to have that duty properly and intelligently performed and to the end that it may be so performed it is necessary that the jury be properly instructed as to the applicable law. Jurors are not presumed to know the law of the case except as it is given to them by the court in its instructions. Indeed in this case they were expressly told that it was their duty to receive the court's instructions "as the law of the case;" not as part of the law but all of it.

Since the defendant's right to have the punishment assessed by the jury is statutory, not constitutional, he takes it, of course, subject to the limitations and conditions imposed by other pertinent statutory provisions; in this instance by Sections 3704, 3705 and 3706. But he was entitled to have the jury correctly and fully informed as to the various punishments that might be assessed. By instructing the jury that they could assess the punishment at imprisonment in the penitentiary "not exceeding two years" and failing further to instruct them that they could not assess such imprisonment for a less term than two years the court misled the jury and probably induced the assessment of one year in the penitentiary, a punishment "not authorized by law."

The language of Instruction No. 1 regarding the punishment follows the language of the statute denouncing the offense and prescribing the punishment. But it is not always sufficient merely to use the language of a particular statute in an instruction. That may sometimes be misleading. That the instruction as given, without a further instruction to the effect that two years was the least penitentiary imprisonment that could be assessed, was misleading in this case there can be no doubt. Paraphrasing the language of this court in State v. Rose,178 Mo. 25, 32, 76 S.W. 1003, it requires very ordinary intelligence to understand from the use of the words "not exceeding two years" that any length of time of imprisonment may be fixed so that it does not exceed the time expressly designated.

There have been many cases in this court affirming the right of the trial court to assess the punishment under the statute, now Section 3704, where the jury had failed to agree thereon or to declare the punishment or had assessed and declared a punishment not authorized by law; also cases wherein the court proceeded under the statutes now designated as Sections 3705 and 3706. But with the single exception of State v. Miller (Mo.), 285 S.W. 90, which we shall consider later, we have been unable to find any case in which such procedure was approved where the failure of the jury to assess a legal punishment apparently was or may have been due to erroneous or insufficient instructions. The theory of those cases is shown in State v. Thornhill, 174 Mo. 364, 74 S.W. 832, where two defendants were tried jointly for felony and the jury found both guilty and assessed their punishment jointly, in contravention of the statute, now Section 3702, Revised Statutes 1929. It does not appear that the jury had not been properly instructed. The court said, 174 Mo. l.c. 371, 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 an irregularity." The controlling fact that "no prejudicial errors are disclosed by the record up to the return of the verdicts" in the Thornhill and other similar cases is pointed out in a well-considered opinion by WALKER, J., concurred in by all members of this division of the court, in State v. Lambert,318 Mo. 705, 300 S.W. 707. There two defendants were jointly tried for felony. The court failed to instruct the jury to make a separate finding as to each defendant and if both were found guilty to assess their punishments separately. The defendants had not requested such instruction, but the point was presented in their motion for new trial, as in this case. It was held that such instruction was an essential part of the law of the case, necessary for the information of the jury in rendering their verdict, therefore a matter upon which it was the mandatory duty of the court to instruct under present Section 3681, and that the point was therefore presented for review. Concerning the right of the trial court to correct the error and render proper judgment under Section 4048, Revised Statutes 1919, now Section 3704, Revised Statutes 1929, the court said:

"While Section 4048, as amended, Laws 1925, p. 197, 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 the rendition of the verdict. [State v. Carroll, 288 Mo. l.c. 408, and cases cited and reviewed.] To rule otherwise would be to empower the trial court to eliminate from consideration other prejudicial errors by a correction of the verdict and the assessment of the punishment. Cases, therefore, where joint findings of guilt have been held to be subject to correction by trial courts and not grounds of error are those in which no preceding prejudicial error appears in the records."

The court held that the failure of the trial court properly to instruct the jury was prejudicial error for which the judgment was reversed and the cause remanded.

In State v. Miller, supra, two defendants were tried jointly and a single verdict of guilty with joint assessment of punishment was returned following an instruction of the court. The court, however, sentenced the defendants separately, which, it was held, satisfied the statute. That decision seems to be out of harmony with the later decision in State v. Lambert, supra, and the still later case of State v. Craft et al. (Mo.), 23 S.W.2d 183. In the latter case there were two defendants and, as in the Lambert case, the trial court failed to instruct the jury to make separate findings and in case of conviction separate assessments of punishment, for which error the judgment was reversed and the cause remanded, although the jury had returned separate verdicts of guilty. The court said it was not a question of separate verdicts, "but a question of whether the jury was instructed and knew that it could convict one defendant and acquit the other. . . ." State v. Lambert, supra, was approved and followed on that point and also in the holding that the omission of a proper instruction on that subject was a failure to instruct on an essential part of the law of the case.

The learned judge who wrote the opinion in State v. Miller, supra, concurred in both the Lambert and Craft cases, which, being later cases, in effect overrule State v. Miller in so far as the latter announces a rule contrary to the holdings in the Lambert and Craft cases.

The principle involved in the case at bar is the same as in the Lambert and Craft cases. State v. Duddrear, 309 Mo. 1,274 S.W. 360, also involves the same principle and is more directly in point on the facts Duddrear was convicted of a felony, his punishment assessed by the jury at twelve years' imprisonment in the penitentiary and he was sentenced accordingly. The maximum punishment allowed by the statute was ten years. The trial court had instructed the jury that if found guilty the defendant's punishment should be assessed at imprisonment in the penitentiary "not less than two years," but had neglected to instruct that the maximum was ten years, which was held to be reversible error. The court said, 309 Mo. l.c. 5:

"The statute (Sec. 4050, R.S. 1919) (now Sec. 3706, R.S. 1929) authorizing the court, if the jury assess a punishment in excess of that prescribed by law, to disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in regard to the particular case, if it had been observed, could not be invoked to sustain this conviction. The purpose of this statute is to enable the trial court to render a correct judgment where the jury has been properly instructed as to the degree of punishment and returns a verdict in disregard of such instruction and in excess of the legal limit; but the statute confers no power of amendment on the trial court where the error, as here, consists in a misdirection by the court itself. [State v. Britton, 183 S.W. (Mo.) 295.]" See also State v. Milligan, 170 Mo. 215, 70 S.W. 473.

In the instant case the record entry following the entry showing reception of the verdict indicates that the trial court may have proceeded under Section 3705, Revised Statutes 1929, upon the theory, perhaps, that the jury had indicated by their verdict that they meant to inflict imprisonment in the penitentiary and that the language of said section. "If the jury assess a punishment, whether of imprisonment or fine, below the limit prescribed by law," etc., means a punishment of the kindor class indicated in the verdict which is below the prescribed limit of that class of punishment. A construction of Section 3706, Revised Statutes 1929, which would seem to authorize such interpretation of Section 3705 was adopted in State v. Dummitt,318 Mo. 1185, 2 S.W.2d 731. We need not decide, however, whether Section 3705 is susceptible of such construction or whether the applicable statute would be Section 3704, which authorizes the court to assess the punishment where the punishment assessed by the jury is one not authorized by law, because the court was not authorized to act under either section where, as in this case, there was prejudicial error preceding the rendition of the verdict which may have been and doubtless was instrumental in causing the erroneous assessment of punishment by the jury.

We are not, of course, to be understood as holding that the giving of an erroneous instruction or the failure properly to instruct as to the punishment that may be inflicted would of itself be reversible error where it is patent from the record that the defendant was not thereby prejudiced. In this case it is by no means apparent that he was not prejudiced.

There is another error in the record which would require reversal and remanding, not however for new trial but only for the rendition of a proper judgment. The judgment entered of record was for conviction of grand larceny, not for conviction of the offense for which defendant was tried and convicted. The record showing allocution, sentence and judgment, except for the differences in naming the offenses, is almost identical with that in State v. Hesterly, 178 Mo. 43, 76 S.W. 985, which case, because of such error, was reversed and remanded with directions to the trial court to sentence the defendant and render judgment in accordance with the verdict.

For the error above pointed out, the failure properly to instruct the jury as to the punishment which might be inflicted, the judgment is reversed and the cause is remanded for new trial.Westhues, C., concurs; Fitzsimmons, C., dissents.