Booker v. State, 81 Miss. 391

Booker v. State

81 Miss. 391 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

On the reassembling of the circuit court after the noon recess, the examination of a state witness was resumed in the absence of the prisoner, who was on trial on an indictment for murder. The testimony of this witness, who saw the homicide, was quite important, and his examination in chief lasted or a time sufficient to take - up three pages of typewritten record paper for the transcription of the notes of the stenographer. The examination in chief of the witness was concluded by the state, and three questions had been asked him by counsel for the prisoner, when the court discovered that the accused was not present, and thereupon the presiding judge stopped the proceedings until the sheriff brought him from the jail. Then the court told the jury not to consider anything said by the witness in the absence of the prisoner, and directed the trial to proceed, over the objection of the prisoner, who excepted, and the witness was re-examined de novo and cross-examined, giving substantially the same testimony as he had delivered in the absence of the defendant. This action of the court is one of the grounds of a motion for a new trial filed by the prisoner, which motion was overruled, and in this we think *396there is fatal error. The prisoner had the constitutional right to be present, and formerly it was uniformly held that a conviction was void unless the record affirmatively showed his presence. Now, under [he statute, his presence is presumed, unless, as in this case, the record shows his absence. The authorities cited in the brief of counsel for appellant are conclusive of the question. The attorney-general, with commendable frankness and fairness, concedes it, and, with a proper and high conception of his real duty as an officer, himself produces a case, the facts of which are precisely the same as in the case before us. State v. Greer, 22 W. Va., 801. In that case the court said : “We will not inquire whether the prisoner was unfavorably or otherwise affected by the cross-examination of the witness in his absence. He had the right to be present, which he did not and could not waive. He had the right to observe every look, gesture, or movement of the witness while he was testifying, and it matters not that the court excluded the evidence and certified that it was repeated in his presence.5 ’ In the case in hand we think the court below should have offered to the prisoner that a mistrial should be entered, and a venire de novo ordered. If this had been done and refused, perhaps the trial might well have proceeded, but that case is not before us. As it is, the new trial should have been granted.

Reversed and, remanded for a new trial.