47 So. 554 | Miss. | 1908
delivered the opinion of the court.
The appellant was indicted for murder, and convicted of manslaughter, and sentenced to five years in. the pententiary.
At the time of the trial appellant was on bond, but present during the progress of the trial until the case was given to the jury, when he voluntarily absented himself and went into the country to spend the night, as he says, though the court announced in his presence before the jury that if a verdict should be agreed upon before 11 o’clock that night he would return to the courthouse and receive it. About 8:30 o’clock the jury came in to render their verdict, and the appellant could not be found. The verdict was received in his absence and this is assigned for error. It will thus be seen that this is an indictment charging a capital offense, and that the appellant’s absence when the verdict was received was voluntary; that he was not in jail,
The learned "assistant attorney general, in endeavoring to save the case, cites four authorities: Gales v. State, 64 Miss. 105, 8 South. 167; but that was an indictment for assault with intent to kill and murder, not a capital charge at all, and is not in point. Finch v. State, 53 Miss. 363; which was an indictment for grand larceny, and is also not in point. Stubbs v. State, 49 Miss. 716, in this case the indictment was for murder, but the case is not in point here, for the reason that Stubbs was in jail, and not on bond, in which respect, the Stubbs case is not like the Finch case, supra. Finch also was in jail when the verdict was received. Price v. State, 36 Miss. 531, 72 Am. Dec. 195; but that was an indictment for assault with intent to kill and murder, and is therefore not in point.
In this case it was held, the case not being a capital one, that since the defendant was on bond, and had voluntarily .absented himself, he could not complain of the verdict having been received in his absence. He was present when the trial began, and when the case was put to the jury, but absconded before the verdict was rendered. It will thus be seen that, of the four cases cited by the learned assistant attorney general, only one was a case where there was an indictment for murder, and in that case the judgment was reversed, because defendant was not present .when the verdict was received, he being in jail at the time, and the reasoning of the court would indicate that it would have been reversed for that reason whether he was in jail or out of jail, though that is not expressly stated; the charge being a capital one. We have no ease exactly like this in which there was an indictment for murder, and the defendant, being on bond, voluntarily absented himself when the verdict was returned, having been present throughout the trial up to that time.
We have most carefully examined all authorities cited on both sides, and many more, and as a result of this examination we announce the following conclusions:
Second. Wherever the charge is a capital one, the courts have held uniformly, in favorem vilce, that the defendant cannot waive his right to be present, and that whether he be in jail, subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence.
Third. Even in felonies not capital, if the defendant be in jail when the verdict is received, it is fatal'error.
Fourth. In cases not capital, the right of the defendant, where he is on bond, to waive his own presence when the verdict is received, is strictly his personal right, and no> such waiver can be exercised for him by his own counsel.
These four propositions are clearly sustained by an overwhelming weight of authority. Indeed, we have found no case anywhere holding that, where the charge is a capital one, the defendant’s failure to be present at the time the verdict is rendered is not fatal error, whether he be in jail or whether he be on bond. We will refer briefly to a few of the authorities.
In support of the first proposition above we cite the cases cited by the learned assistant attorney general, supra, except the Stubbs case, Bishop’s New Criminal Procedure, vol. 1, § 273, and the learned note of Mr. Freeman in 28 Am. Dec. G30, 631. In this note he points out the twoTines of authorities-holding, the one that the record must affirmatively show tho presence of the prisoner when the verdict is received, which is the rule in Mississippi (Kelly v. State, 3 Smedes & M. 518),
By far the clearest and best authority we have anywhere found on this subject is the case of State v. Kelly, 97 N. C. 404, 2 S. E. 185, 2 Am. St. Rep. 299. We quote as follows: “That the prisoner in capital felonies has the right to be, and must be, personally present at all times in the course of his trial, when anything is done or said affecting him as to- the charge against him on the trial in any material respect, is not questioned. Indeed it is conceded that he has such right, and that he must be so present. State v. Craton, 28 N. C. 164; State v. Blackwelder, 61 N. C. 38; State v. Bray, 67 N. C. 283; State v. Jenkins, 84 N. C. 1812, 37 Am. Rep. 643. As to felonies less- than capital, the prisoner has precisely the same right to be present, but it is not essential that he must he at all events. In the case last cited, Mr. Justice Buffin said, in reference to the prisoner’s right to be present: ‘Whether the right can be
That court further says, speaking of the right of a defendant to waive his presence in offenses not capital, when the verdict is received: “In such cases, if the defendant fly, pending the trial, the court is not bound to stop the trial and discharge the jury (that is, where the defendant on a charge less than a capital one is on bail) and thus .give the defendant a new trial. To do so would compromise the dignity of the court, trifle with the administration of justice, and encourage guilty parties to escape. The defendant has no right, fundamental or otherwise,
The third proposition above is also thoroughly well-settled, and is directly held in the case of Finch v. State, 53 Miss. 365, Finch, though indicted for only grand larceny, was nevertheless allowed to make the point that the verdict was received in his absence, because he was in jail, and it was the duty of the court to exercise its power and have him present when the verdict was received.
The fourth proposition above set forth is supported by the case just quoted from, State v. Kelly, supra, and by all the authorities. Mr. Freeman, in his note to Fight v. State, 28 Am. Dec. 630, says: “The waiver must be the act of the accused himself, and not that of his counsel. People v. Perkins, 1 Wend. 91; Rex v. Streek, 2 Car. & P. 413; Rose v. State, 20 Ohio 31. And his absence must be due to his own voluntary act; for, if he is prevented from being present by being confined in jail, proceeding with the trial in his absence will bean irregularity for which a new trial will be granted.”
So that we regard the four propositions which we have stated as abundantly settled, both on principle and authority. Of course, it is entirely immaterial that the verdict in this case was for manslaughter. The test is, Was the charge in the in dictment a capital one. It is curious to note, in passing, that in Tennessee it has been held that the absence of the prisoner, even when due to his having made his escape, in a felony, not capital, deprives the court of jurisdiction to proceed with the-trial at all. Andrews v. State, 2 Sneed (Tenn.) 550.
The judgment is reversed, and the cause remanded.
Reversed.