53 N.E.2d 779 | Ind. | 1944
Appellant was tried and found guilty by jury on an indictment for rape and sentenced to imprisonment in the State Prison. His motion for new trial was overruled and the ruling is assigned as error. Affidavits and counter-affidavits were considered as evidence in support of specifications of the motion and have been brought into the record by bill of exceptions. The affidavits disclose without controversy that after the jury had been deliberating five or six hours the judge proposed to reread the instructions, called to the courtroom the appellant's attorney (who does not appear in this appeal) and asked if he desired that appellant be brought from the jail to the courtroom. The attorney expressly waived appellant's presence whereupon the judge read to the jury for the second time all the written instructions and directed the jury again to retire and attempt to agree upon a verdict. Appellant himself made no affidavit. There is no showing, except by inference from the fact that he was then in jail, that he did not know what was transpiring or that he did or did not authorize such waiver by his attorney. The question is presented whether upon this state of the record the court erred in not requiring appellant's presence in the courtroom.
In many cases it has been said that the accused has the right to be present at every stage of a trial in a prosecution for a felony. See authorities collected in 16 C.J., Criminal 1-3. Law, 813, 23 C.J.S., Criminal Law, § 973, 14 Am. Jur., Criminal Law, *314 § 189. The early history of the development of the rule is found in Bennett Heard's Leading Criminal Cases, 2d Ed. 435, as a note to Sperry v. The Commonwealth (1838), 9 Leigh 623, wherein it is said:
"The well established practice in England and in this State is, that a prisoner, accused of felony, must be arraigned in person, and must plead in person; and in all the subsequent proceedings, it is required that he shall appear in person. This practice is stated in 1 Chitty's Criminal Law, 411, 414. . . . In looking into the English forms of entries, it will be found that the appearance of the accused is carefully stated upon the record to have been in his proper person. 4 Chitty's Criminal Law, 268.
"The principles on which this practice is founded are supposed to be too obvious to need explanation or illustration."
The principles, however, are not "obvious" with respect to the right of the accused to be present during the instruction of the jury. We can see how common-law judges, in order to forestall any possible contention of a convicted defendant that he had been prejudiced by something which occurred in his absence, may have adopted the practice of requiring their clerks to make a record in each case for each day of a trial showing the presence of the accused. This spoke the truth because in the early English trials the prisoner was invariably in court, often in shackles, and was only absent when he escaped from custody. So out of this requirement probably grew the statement that the accused had a right to be present at every stage of the trial. We can now see some reasons, not too strong, why it is for the defendant's advantage to be present during instruction of the jury. He may not be well represented by counsel and himself may be able to *315 inform counsel or the court of some prejudicial misstatement of law. Or he may note and protest the inflection of the judge in over-emphasizing instructions to his detriment. He may watch the jurors in entering or leaving the courtroom, or while they are there, for such misconduct as speaking or otherwise communicating with bystanders. While he may be unduly suspicious and think conduct prejudicial when in fact the proceedings are wholly regular, by his presence he has the opportunity of noticing and presenting for further investigation and assignment as error any word or act which he deems irregular or harmful. If these personal privileges were all that the rule involves there would seem to be no reason why they might not be waived.
Some courts have said, however, that there is a public interest in the trial of the accused which prevents such a waiver. One of these is Hopt v. The People of Utah (1884),
In attempting to sustain the rule as a constitutional privilege of the accused it has been read by implication into the Bill of Rights. See Andrews v. State, supra; State v. Blackwelder
(1866), 61 N.C. (1 Phil.) 38; The People v. McGrane (1929),
Many states have statutes declaratory of the common-law right or requirement, whichever it may be called. Our statute was first enacted in 1843 and again with slight change in 1852 immediately after the adoption of the present constitution, as follows:
"No person prosecuted for any offense punishable by death or confinement in the state prison or county jail shall be tried unless personally present during the trial." § 9-1801, Burns' 1942 Replacement.
In three cases this statute was said to be mandatory, State v.Wilson (1875),
It has been held that in the voluntary absence of a prisoner who is on bail the proceedings may continue without error, State v. Smith (1935),
In Arkansas waiver by an attorney has been permitted. The leading case so holding is Davidson v. State, supra. Because of fear for the defendant's safety, at the request of himself and his attorneys, the *320
court ordered him, over the objection of the prosecuting attorney, to be taken to a jail in an adjoining county. Apparently the defendant was present when a written stipulation was made and filed by his attorneys agreeing that he need not be present at the time the verdict should be received. The court affirmed a judgment of conviction with two judges dissenting. It was conceded in the majority opinion that "counsel, in the absence of the defendant, and without authority from him cannot waive a personal privilege guaranteed to him by the Constitution," but the court indulged the presumption "in the absence of a showing to the contrary that the attorneys had authority from him to enter into the stipulation waiving his presence." The dissenting judges contended that the defendant was not required to show that "he was prejudiced by any substantial step taken in his trial during his absence, for the probability that he might have been prejudiced by any step taken, or any order made, is all that need be shown to reverse a judgment of conviction, where no affirmative showing is made that no prejudice did result or could have resulted from his absence." Upon this case later Arkansas cases are based which hold that the appellant must show that he was prejudiced and that his attorneys did not have authority to waive his presence. In the absence of such showing the rule in Arkansas now seems to be that authority of the attorney will be presumed. Nelson v. State (1935),
In Ray v. State, supra, the only question presented on the appeal was alleged error in receiving, in the compulsory absence of the accused, for about twelve minutes testimony which the court said did not tend to connect him with the crime and which was stricken from the record upon his return to the courtroom with instructions to the jury that it be disregarded. This court recognized the statute as mandatory but concluded that there had been no harm. As authority the court cited six cases. In People
v. Miller (1862),
It was urged in oral argument of the case at bar that it is not the function of the trial judge upon his own motion to reinstruct the jury. Certainly it is not the usual nor the better 6. practice. Judges will avoid criticism, if not error, by refraining from any unsolicited interruption of the deliberations of the jury. Other alleged errors either are of no consequence or will doubtless be avoided in another trial.
The judgment is reversed with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in