Schwartz v. State

| Miss. | Oct 15, 1912

Cook, J.,

delivered the opinion of the court.

Appellant was tried and convicted in the circuit court of Adams county upon a charge of murder, and sentenced to a life term in the state penitentiary. From this judgment, he appeals to this court.

The evidence established the fact that appellant was guilty of an exceedingly atrocious murder. It is insisted that one of the jurors, who, over the objections of defendant, was permitted to try his cause, was shown on his voir dire to have formed a fixed opinion of the guilt of the defendant.

A careful reading of all of the questions to and answers of this juror, in our opinion, merely shows that he had an impression as to the guilt or innocence of the accused, derived chiefly, if not entirely, from the press accounts of the crime; and we cannot say that the trial court erred in declaring this juror qualified to try the case. • Some of his replies to interrogatories propounded by defendant’s counsel, taken alone, seem to indicate a fixed opinion; but, in connection with all he said, there is no reason to believe that he was disqualified.

It is further said that the record does not disclose that the accused was present when the jury was impaneled. Conceding this to be true, this court will not reverse, because the transcript of the record does not show that he was present. Code 1906, section 4936.

The main point upon which the appellant relies for a reversal is that the defendant’s counsel was not present when the jury returned its verdict, and when the court pronounced sentence upon the defendant. It appears that the court announced from the bench that the court would take a recess and reconvene at two o’clock. The jury returned its verdict, and sentence was pronounced at 2:30 o ’clock, and the counsel for defendant did not come into court until'2:40 o’clock. A lawyer who has a case in court, if he desires to be present, should promptly attend upon the court at the time fixed by the trial judge for the convening thereof; and there was no duty imposed upon the court to wait or send for counsel, in order that he might be in court when the jury rendered the verdict against his client. Counsel asserts that no legal trial could be had of a capital case, unless the defendant be represented by counsel.

Section 26 of the Constitution confers upon the accused in criminal prosecutions “a right to be heard by himself, or counsel, or both;” and these rights cannot be denied, or abridged nor can the court require the accused to secure counsel, or impose counsel upon him, unless he requests the court to appoint counsel.- Section 1481, Code of 1906, cited by counsel, povides that any person charged with a capital crime, and who is unable to employ counsel, “shall, at his request, be allowed counsel,” etc. It will be noted that the accused was, in fact, represented by counsel, who were selected and employed by him, and that his counsel voluntarily, so far as the record shows, absented himself, and refuse^ or neglected to come into court, and no request was made by the accused that he be permitted to have his counsel present before the verdict was received or sentence imposed upon him. Appellant was not denied any right guaranteed him by the Constitution of the laws.

Affirmed.