
    Mallison v. The State.
    1. In criminal trials the State may challenge, peremptorily, three jurors.
    2. Indictment for murder: tho jury having retired to consider of their verdict, returned into court, and asked the court whether, on an indictment for murder, they could find the defendant guilty of manslaughter only? Tho court told tho jury, that they were the judges of the law and the facts: that they mightfind their verdict as they pleased, and that when the verdict should he rendered the court would decide upon its validity: Held, to amount to an instruction, and that having been given orally, the judgment must, under tho provisions of the act of Feb, 13,1839, (Laws of Mo. session 1838-9, p. 27,) be reversed.
    3. Tho court adhere to their former decision, viz: that on an indictment for murder, the defendant may be convicted of manslaughter.
   Opinion of the Court delivered by

McGirk Judge.

At the May term of the circuit court for St. Charles county, for the year 1839, Mallison was indicted for the murder of one Samuel L. Holmes. The indictment contains two counts for murder in the first degree, as defined by the statute.

Which definition is thus, “Every murder which shall be committed by means of poisons, or by lying in wait, or by any other kind of wilful deliberate, and premeditated killing or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first ■degree” — R. Code, p. Ib7.

To this indictment the defendant pleaded not guilty. On the trial of which indictment, the jury returned a verdict of not guilty of murder, but guilty of manslaughter in the second degree, and assessed bis punishment to four years imprisonment in the penitentiary.

■ in the progress of the proceedings the State was allowed a peremptory challenge. This was excepted to by the prisoner. The 2nd point of objection is that the court gave oral instructions to the jury, when, by the statute, it is said, it should have been in writing: and tirrd, the cou-'t re'uted to grant the prisoner a new trial: and 4th, the court refused to arrest the judgment. The 2n 1, 3rd and 1th point: are, in the argument, of counsel, again sub-divided into several points. I will proceed to examine these four points in the order as stated above, with their sub-divisions a s they arise.

The first point to be considered is, did the court err in allowing the State a peremptory challenge. It i i well known, that, at common law, the prisoner wasailowed a peremptory challenge, to be exercised at iiis will, pleasure, and even-caprice. This was given in tenderness to human life. It is equally well settled,.that, by the same law., the crown was not allowed- any such challenge, but submitted to the idea that, on questions of this sort, the King and government of England, were elevated above likes, dislike*, whim : and caprices regarding any, and all the subjects of the kingdom.—4th B. 353. 3 Bac. Ab’nt 762. It is not pretended by the State’s counsel now, that the-common law, ni a ¡opted in' Missouri, gives the State any claim to the right. But the claim is placed on the 13th- section of the jury lav'.. Revised Code of 1836, page 343. The act is entitled: “an-act concerning grand and petit j.urors.” The act provides for the summoning grand and and petit jurors, dev-iibes their qualifications and duties in part. Then the I3th sec’, declares: “In all-civil and criminal trials by jury, either party-may challenge, peremptorily, three jurors, ami .suiter party may require the officer to return eighteen i,i tho first instance.” Then the. 14th sect, authorizes the c( urt to have summoned a special jury in civil cases. Messrs. Bales and Coalter admit that the sect, is broad enough, and large enough in its terms, to sustain the claim of tho State. But they insist, that the sole object of the act was not to enlarge the powers of the State, but only to provide a mode for obtaining jurors, as a general thing for the use of the court.— They also rely on the R. C. page 489, sect. 3, where cnmir-al practice is regulated, to sustain their view, which, they say, grants and limits the number of challenge j to the defendant, and gives none t> the State, and they rely on the 4th sect, as being particularly explanatory of the meaning of the law maker.

In crisaioat trials tbs state may challenge, peremptorily three jurors.

Thi.i 4th sect, provide-, that “there shall be summoned and returned in every criminal-causo, a number of qualified jurors, equal to the number of peremptory challenge ', and twelve iu addition.” It i: to be observed, that the first part of tins act provides for the casos ir. criminal matter! when thtrs shall he jury trials, and who shall be juror The 3rd sect, provides and declare-! the number of peremptory challenges the defendant shall have in capital- cases, which is twenty. It then points ou* the number to be allowed in other case! to defendants. The4th section provideq that there shall- he summoned and' returned in every criminal cause, n number equ il to the number of peremptory challenges, and twelve in-addition. This statute makes no provision, nor does it say one word in regard to a peremptory challenge in behalf of the State. It was passed the Hist March 1835. The act respecting jurors was passed- March 17th 1835.

It is insisted, that the act of 21st March, which-is silent as to chdlenges in behalf of ‘the Slate,- being the hut statute repealed the statute of 17th March-, and that the statute of 31stMarch having taken up the whole- questioned challenges it is fairly to be supposed it was the intention of the Legislature that the State should have no- peremptory challenge.

On this question my opinion is, that the last act does not repeal the first act. There is in it no repealing clau e, and both statutes may well stand together. It ij a rule of common law construction, that statutes ought to be so eon,trued that all can stand,- and that all the statute ■•, passed at the-same session, are to be taken as one statute. ri here is also another rule, which i-, that statutes made in pari materia are to bo construed together. This rule I adopt in this c;t<e. It will then read in the first part thereof, that in all criminal cases, (no matter of what nature great or small,) thepri-soner, or criminal, as well as the State, shall have a peremptory challenge of three jurors. Then, by the latter part of the statute, the subject is again taken up, and the legislature mm'e fully enlarge, the right? of the prisoner criminal in capital and peintentimy cases, in both of which cases, the challenge without cause is extended to twenty; where the imprisonment is for life, nor in the penitentiary, the challenge is twelve, in other cases to four. This all will stand with the first part of the statute except that, in cases not enumerated as above, the challenge is increased one; but, still, the challenge to the State is not by auy thing in the last act, in any way infringed. I therefore am of opinion that there is no error on this point.

Indictment for murder, Ting^retr *ia" red to con-eider of their verdict, returned into court, and asked the ^^oñ^an'ln" dictment^for could find the defendant guilty of manslaughter on-■lyt The com t told the jury, that they 'were the jud•ges of the law and the facts: that they might iind their verdict, as they plea end, and that wk/’n the verdict t'hvU-O tC reni^ere^ the court would decide upon :ts validity: Held, to am’t having been thVjudgment must> under the provision» the act of session 1838-revfrsel^ be

The second point made is, that the court gave oral instructions to the jury, when by law all instructions in criminal cases must be in writing. It is enacted by the act of 13th of February, 1839, sec. 1st, That in no criminal case shall any court give to the jury any charge or instruction on any question of law or fact, except the same be in writing and ’n ^le cause? and R>ai If an}' court violate that statute, the party may except, and for such violation the cause or judgment shall be reversed at the instance of the aggrieved party. A bill of exceptions taken in this case, shows, that , • . .... , . , „ the jury came into court, aner'having retired to consider of their verdict, and demanded of the court, whether they ’ / could, on this indictment for murder, find the defendant guilty °f manslaughter only. To which question, the court told the jury, that the court had not yet decided that point; that the court did not know the supreme court had decided the point: they were the judges of the law and the fact; that they might find their verdict as they pleased, and that when the verdict should be rendered, the court would decide on it* validity. It also appears that this information was oral. It is now objected that this was error, and against the express words of the statute.

Mr. Geyer for the State, insists, that here is the question propounded by the jury to the court, to wit; On indictment under the laws of the State for tnnrdei, if the jury should he of opinion that the defendant is not guilty of the murder, can they acquit him of the murder, and on the same indictment, if they think him guilty of manslaughter, find him guilty thereof. This question has already been decided by this court in the case of the State vs. Watson, 5th vol. Missouri R. 497. In which it has be<m decided, that the jury can so The find, and that the finding will be binding and lawful. counsel insist that the court now reconsider the question: __ . „ .. . First, for the reason that in that case Judge Edwards did not concur, and again, that, perhaps, a second argument and consideration, may produce a different result., stating, that they are not satisfied with the decision, and propose now to show it is wrono-. Accordingly, we have reconsidered the , ° ‘ . case, and all tne arguments, and we are still or opinion decision is right. When the cace of Mallison wras tried at St. Chares, the case of the State vs. Watson was decided but not published, but now it is in print. I will now proceed to pay some attention to the reasons and arguments Messrs. Bates and Coalter, against the finding of the jury» and the opinion in Watson’s case. It is first insisted by them, that with regard to crimes and punishments, except in cases where by the common law the punishment would only be fine and imprisonment, Revised Code. 378, the common law of England is not the law of Missouri. They insist that ° * with regard to the definition of murder, larceny, and other offences, the statute has created and defined the fence, and that, therefore, the common law, in no sense the subject, can have any force or bearing regarding such offence.

adhere to°Urt their former 0n an iñdict-Ifent f°r m“r-dor, the de-may

I understand ihis court to be of opinion, that in all cases where the statute has defined any offence, by describing the facts or acts which shall be criminal, that such facts or acts are criminal, and that with regard to the name given to such facts and acts, such is the name of the offence; and, farther, that the Legislative punishment annexed to the offence is the legal punishment. Also, that in cases w here the statutes only provide a punishment for an offence, by a common law name, the common law must be resorted to for the purpose of ascertaining what facts and ingredients constitute the of„ fence, and farther, that all the rules of evidence in criminal cases, except where altered by the statute, are law here. It argUe(|) that because the Legislature have taken up the subject at large in the Rev. Code, respecting crimes and pun-isinnents, that such code is the only law on the subject. No member of this court agrees to that. If it were so, the con-quence would be, that in no case would a court be able to proceed through to final judgment, without having in some matter t® take its own discretion, feelings or bias for the rule of decision. This would place the citizens in an unenviable situation. I shall not pursue this subject any farther. The argument is, that Watson’s case is wrong, because in that case it is said that at common law homicide is the genus, and murder, manslaughter, fee., are the species. All that is meant by the expression is, that homicide is the general name for the act of killing or taking the life of a human being, without any regard to the malice, wickedness of heart, or innocence of purpose with which the act is done. It is a mistake to suppose the opinion assumes homicide in the abstract, without adjuncts, of qualifying, explaining, or restraining, is murder. Homicide, unexplained by the actor, is murder; no indictments, however, are framed at common law for this by that name, because the common law deems this description too general.

It xvill be seen, by reference, however, to the statute, R. C. 167-8, that the word homicide is used freely and liberally as a generic term. The statute declares when homicide shall be deemed felonious. It declares what shall be the consequences when the same is justifiable or excusable, feo-tío much for this objection taken to the opinion. The other objections go to the whole question. I will in a bz’ief manner examine that question.

It is insisted that to indict a person for murder by lying in wait, perpetrated by shooting with guns or pistols, or by stabbing with swords, spears or Spanish knives which would be murder in the first degree, and then for the jury to find the defendont guilty, under that indictment, for manslaughter in the 3rd degree, which would be where the Captain of a steam boat, or other person having charge of the boiler, shall from ignorance or gross neglect, or for the purpose of excelling another boat in speed, create, or allow to be ere,a-, ted, an undiie quantity of steam, so as to burst the boiler whereby any person shall be killed. Such Captain, &c., is guilty of manslaughter in 3rd degree, and to sustain such finding would be both unjust, unfair, and unconstitutional, because such indictment would clearly not give the prisoner auy notice of the true nature of the charge against him. It is admitted that in such a case the conviction would be' unjust and unlawful, and that a new trial ought to be granted. The view taken of this subject by the State’s counsel appears to be the proper one, which is, that in every case of an indictment for murder, the form of the killing must be set forth, and that under that indictment no evidence of any other form of killing ought or could be admitted. The fact and form of killing being proved, the prosecution would have no more to do. Then it would be the business of the defendant to prove and estanlish as many qualifying circumstances so as to make the homicide, manslaughter only in some of the forms of that kind of killing, or justifiable or excusable. If this principle in practice is carried through the statute respecting crimes, it is believed the difficulties will be greatly lessened, still it will be admitted there will remain difficulties, but they must be gotten over as they arise, or provided for by new legislative enactments. I am disposed to pursue this subject no farther, believing that it is often an evil for a court or legislature to attempt too much. It is my opinion then, that there is no error on this point.

With regard to the other questions made and argued in this cause, it does not become necessary to examine them. ■The question made respecting the affidavits of the jurors could only be useful on the motion for a new trial. As there is on the record reasons already found for reversing the judgment, a new trial is the consequence. As to the question of a new trial on the merits, this court forbears giving any opinion.

This cause is remanded to the circuit court of St. Charles county, to be proceeded in, in conformity to this opinion.  