# State v. Brown

> Supreme Court of Missouri · July 21, 1969 · 443 S.W.2d 805

URL: https://www.frixlaw.com/law-library/cases/9664949

## Case

- **Full name:** STATE of Missouri, Respondent, v. Kerry BROWN, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** July 21, 1969
- **Citations:** 443 S.W.2d 805; 1969 Mo. LEXIS 780
- **Precedential status:** Published
- **Opinion:** Concurrence by Seiler
- **Judges:** Finch, Seiler
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664949

## Opinion text

SEILER, Judge
(concurring in result).
I concur in the affirmance of the judgment, but point out it is not necessary in deciding this case to announce a new rule *812 that henceforth juries will be instructed at the outset of their deliberations that if they agree on guilt, but not punishment they can return a verdict of guilty, in which case the court will fix the punishment. In the case before us, the jury did fix both guilt and punishment. Thus, what would be the effect had the jury followed Instruction No. 6 and fixed guilt only is not before us.
From territorial days to the present, Missouri trial courts have not instructed juries at the outset of the deliberations as is now proposed. This has not been done until the jury has informed the court they are unable to agree on punishment. Then the instruction is given.
The main opinion changes this long-established rule on the basis .that it may lead to mistrials where the jury has agreed on guilt, but cannot agree on punishment. This is possible, but we have no evidence or judicial knowledge one way or the other as to how often this happens, if at all. Another basis given is that Rule 27.02 (the rule is closely patterned after the statute, Sec. 546.410, RSMo 1959, which has remained virtually unchanged for almost 125 years), says the jury may assess the punishment. Although the opinion does not develop the underlining of the word may, the implication is that fixing of punishment is to be regarded as merely a jury privilege. In State v. Bevins, banc, 328 Mo. 1046 , 43 S.W.2d 432, 434 , in discussing this word “may” in the statute (now rule) mentioned, the court indicated “may” meant “shall” and said the purpose of the same statutory provisions (now rules) as those referred to in the present opinion was “ * * * to place upon the jury the duty, not merely to grant the privilege, of determining the punishment if they can agree thereon * % *»
I see no compelling reasons to change this long-established state of affairs and, on the other side, I can see where many ingenious and indirect arguments will be made to juries that they need not let punishment bother them because if they cannot agree on it, the judge will take care of it. It is expecting too much of human nature for prosecutors not to take advantage of this opportunity and for juries not to be influenced thereby. Steadily, perhaps rapidly, we will get to the place where more and more punishments are set by the court. It seems to me this would be a usurpation by the courts of what has traditionally in Missouri been primarily the province of the jury. I am not sure it is our place to cause this to occur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664949. Public record. Not legal advice.