United States v. Ball

This article needs attention from an expert on the subject. See the talk page for details. WikiProject U.S. Supreme Court cases may be able to help recruit an expert. (October 2008)

This article may require cleanup to meet Wikipedia's quality standards. Please improve this article if you can. (April 2008)

This article should be divided into sections by topic, to make it more accessible. Please help by adding section headings in accordance with Wikipedia's style guidelines. (April 2008)

United States v. Ball

Supreme Court of the United States
Decided May 25, 1896
Full case name United States v. Ball, et al.
Holding
Court membership





Case opinions
Majority Gray

United States v. Ball, 163 U.S. 662 (1896),^[1] was a case in which the Supreme Court of the United States held considered the effect of an acquittal or conviction in a previous trial based on a defective indictment. The opinion of the court was delivered by Associate Justice Horace Gray.

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, 1889, [163 U.S. 662, 664] 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 delay."

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 [163 U.S. 662, 665] justice might appertain. Ball v. U. S., 140 U.S. 118, 136 , 11 S. Sup. Ct. 761.

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 [163 U.S. 662, 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 Russ. Crimes (6th Ed.) 48. And the general tendency of opinion in this country has been to the same effect. 3 Greenl. Ev. 35; 1 Bish. Cr. 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 [163 U.S. 662, 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 [163 U.S. 662, 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 Com. 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 Rev. St. Mass. 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 [163 U.S. 662, 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. Com. v. Peters, 12 Metc. (Mass.) 387; 2 Hawk. P. C. c. 35, 3; 1 Bish. Cr. Law, 1028. But, although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment [163 U.S. 662, 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. U. S. v. Sanges, 144 U.S. 310 , 12 Sup. Ct. 609. 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. St. 1035. That he was thereupo 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.