5 Indian Terr. 234 | Ct. App. Ind. Terr. | 1904
The appellant was indicted for the murder of William Watson, and convicted of the crime- of manslaughter, in the United States Court for the Southern District of the Indian Territory. On April 11, 1903, he was sentencedto imprisonmént in the United States Penitentiary at Ft.Leavenworth, Kan., for a term of 10 years, and fined $1,000 and costs. From this judgment an appeal is taken to this court.
Three errors are assigned, but under the view we take of the case a decision upon the third will be decisive of the case.
One of the causes assigned for a new trial was the absence of the presiding judge from the court room during the argument, and in support of the motion the following affidavits were filed:
“I, M. Gorman, being duly sworn, on oath do say: That I was present at the trial of Dudley Slaughter, in Pauls Valley, on the charge of murder. That during the said trial, and while Mr. J. E. Humphrey, Assistant United States Attorney, was making his opening argument for the government to the jury, my attention was called to the fact that the court had left the room. About this time I went to the water bucket in the court room to get some water, and, there being no water in the bucket, went out of the front door of the court room, across the hall, about twenty feet wide, and went to the door of the clerk’s office. Some one was inside dictating to a stenographer, and, not wishing to interrupt them, I stepped back, and waited in the hall for probably three or four minutes. The parties continued busy, and I did not go into the clerk’s office for water, but- returned to the court room; and just as I passed the door of the judge’s private room he opened the door and came out, and as I went into the court room he came in behind me. Before I left: the court room a colloquy took place between Mr. Humphrey and Mr. Graham, in which I heard Mr. Humphrey tell Mr. Graham to keep his bazoo closed, and to make his objections to the court, and heard Mr. Graham reply, that he could not, as the court was absent.”
*237 “I, Phillip Barrett, being duly sworn, on oath say: That the colloquy as between Mr. Humphrey and Mr. Graham, as copied into the hereto attached motion for new trial, is correctly transcribed from my notes of the speech of Mr. Humphrey as I took the same in shorthand as it occurred on the trial of said Dudley Slaughter-at Pauls Valley.”
The district attorney, in opposition to these affidavits filed the following:
“M. Cecil, being first duly sworn, on his oath deposes and .'■ays that he was one of the court baliffs for the United States' Court at Pauls Valley at the March, 1903, term, and was present in the court room during the trial of the above-entitled cause; that at the beginning of the argument of Mr. Humphrey for the government the judge passed out of the court room to the chamber across the hall; that as the judge passed' out of the court room he instructed affiant to keep the door wide open, in order that he might hear everything going on in the court room while at chambers. Affiant states that he obeyed this instruction, and kept the court room wide open. Affiant further states that the judge was out of the court room not exceeding one minute, when he returned, and affiant closed the door.”
“Charley Croonjes, being first duly sworn, upon his oath deposes and says that he is messenger for Pión. Hosea Townsend, United States Judge; that he was present at Pauls Valley during the trial of the case of United States vs Dudley Slaughter at the March, 1903, term of court, that at the beginning of the argument for the government by Mr. Humphrey the judge went’to his chambers adjoining the court room in Pauls Valley, with a hall intervening; that as the judge passed into said chambers affiant started to close the doors, and the judge stopped affiant, and ordered affiant to keep the door open, so he could hear what was*238 going on in the court room. This affiant did. The judge was in his chambers only for a short space of time — long enough to use the urinal — and immediately returned to the court room.”
The question is, was the absence of the trial judge from the trial during the argument of the United States Attorney reversible error? We have examined many authorities, and we have come to the conclusion that in the trial of a capital case without the presence of a presiding judge at all times to uphold the majesty of the law and enforce its mandates there can be no trial such as is contemplated by the law. The proceedings will not run without his superintending and controlling power, even for a moment. If it becomes necessary for the presiding judge to retire for a few minutes, he should suspend the proceedings until his return. Nor does.it make any difference whether he retires from the court room during the introduction of the evidence or the argument of counsel. The argument is just as much a part of the trial as the introduction of testimony, and to be able to pass upon the motion for a new trial the judge should be present in the court at all times during the progress of the case .from the time the clerk calls the jury into the box until they retire with their sworn officer to consider of their verdict. The power of the court to suspend the proceedings at all times is ample, and the better practice is to order, a suspension if it becomes necessary for the judge to absent himself from the court room. “It is improper for a presiding judge to absent himself from the court room during the trial of a ease before 'him, without suspending the.trial in his absence. This rule as to the necessity for the presence of the judge is based upon the idea that the judge is an essential element of the court, and that there can be no court in the legal sense in his absence. This rule applies not only in the ease of a single presiding judge, but also where the court consists of several judges, if the absence of one of them works a disorganization of the court. * * * The presence of
An interesting discussion will be found in Mr. Thompson’s excellent work on trials: “When, during the trial of a case, the judge leaves the bench and withdraws from the bar, he should order a suspension of business until'his return. His immediate presence tends to preserve the legal solemnity and security of the trial, and upholds the majesty of the law. Especially while a witness for the state is under examination should the judge not retire beyond the bar, without directing the examination to
The Supreme Court of Illinois, in the appeal of Meredeth, who was indicted in the McLean circuit court for the murder of
The Kansas Supreme Court passed upon a similar question in a late case, and Justice Johnson, in rendering the opinion of the court, uses the following language:' “Another objection is based on the temporary absence of the presiding judge during the progress of the trial. It was shown on the motion for a new trial, beyond dispute, that during the argument in behalf of the defendant the judge left the bench, and passed into an adjoining room, closing the door behind him, and that he remained there for a period of about 10 minutes. During this time the judge appears to have been out of sight and hearing of the jury and counsel, and where he could not hear the argument or exercise control over the proceedings in the court room. The absence of the judge during the progress of the trial cannot be sanctioned. The argument of a cause is an important part of the trial, and it is essential that it should be conducted in the presence and hearing of the judge, who must, ultimately approve the proceedings and render judgment. The hearing and conduct of the argument is almost, if not quite, as important as the hearing and reception of testimony; and the 'judge should be present to see that counsel, in their arguments, do not go beyond the bounds of legitimate discussion, and to determine any objections that may be raised.. In fact, there can be no court without a judge, and he cannot even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that
The Supreme Court of Colorado, in the Case of O'Brien on appeal from conviction of a felony, following the same line of reasoning, said: "Under our judicial system every criminal trial must take place in open court. It must be conducted in the presence of the judge as well as of the jury. The judge must be present to superintend the proceedings, uphold the majesty of the law, and thus give protection and security to all parties interested or concerned in the result of the trial. The arguments of counsel, as well as the taking of the evidence, are a part of the trial, and the judge cannot properly absent himself while such proceedings are being carried on. It is his duty to be present, and see to it that counsel in then; arguments do not travel outside the record, nor transcend the limits of legitimate discussion. Moreover, the presence of the judge is essential to the organization of a court for the trial of felony cases. If the judge is absent while substantial proceedings, such as the taking of evidence or the argument of counsel, are being carried on in the presence of the trial jury, such proceedings must be regarded as cofam non judice. * * * The Constitution guaranties that every person accused of crime shall have a public and impartial trial, and that the accused shall have the right to appear and defend in person and by counsel. These provisions imply that the trial shall be conducted in open court, and under the protection of the court. Of what value are such guaranties if they may be talked away in the absence of the court, the only power that can
The Supreme Court of Arkansas, in the appeal of Stokes from á judgment of conviction for murder in December, 1902, in reversing the case, says: “Appellant was convicted of the crime of murder in the first degree. The record recites that: ‘During the closing argument of Creed Caldwell, who assisted W. B. Sorrells, the regular prosecuting attorney, in the prosecution of this case, and in the closing argument on behalf of the state, the said Creed Caldwell, while the court had retired to the room of the chancellor in the courthouse, and adjoining to the court room, made use of the following language, to wit: “Gentlemen of the jury, Mr..Foster, the attorney for the defendant, is too shrewd and too smart a lawyer to put the defendant on the stand to testify in this case.” Counsel for the defendant interrupted counsel for the state, and begged him to desist from such line of argument, but was unable to get him to refrain therefrom until the sheriff could notify the judge of counsel’s conduct, and, while the sheriff was on the way to the chancellor’s room for the purpose of informing the court, the said Creed Caldwell, as counsel for the state, continued, and said to the jiiry that he did not care what anybody said; that was the law; and that,’if Mr. Foster had put the defendant on the stand as a witness, it would not take this jury ten minutes to break his neck.’ The record continues: 'As soon as the court was informed of the language and conduct of the said Creed Caldwell, which was within one minute thereafter, and the defendant could raise his objections to the remarks and language used by him to the jury and in his argument/the court proceeded to rebuke the said Caldwell and charge the jury in the following language, to wit: “Mr. Caldwell, J am certainly
In a leading case in Mississippi the Supreme Court, in reversing a judgment on conviction of murder, held: “If this error were merely a technical one, not vital in its nature, we would not, for that alone, reverse the judgment. But the error
To the same effect is a decision of the Supreme Court of Nebraska) “And vdiere the presiding judge in a criminal prosecution left the bench during the final argument of the cause, and retired from the court room, and permitted the argument to
The same controversy arose in a case before the Siipreme Court of Georgia in 1900, and in sustaining the position here taken that court said: “If it. were ah open question, we would hold that the presence of the judge at all stages of the trial is absolutely necessary to its validity, and that the absence of the judge from the trial without suspending the same, for any length of time, no matter how short, or for any purpose, however urgenet, would vitiate the whole proceeding, whether objection was made by the parties interested or not, and whether injury resulted to any one or not. The judge is such a necessary part of the court that his absence destroys the existence of the tribunal, and public policy demands that the tribunal authorized to pass upon the life, liberty, and property of the citizens should be constituted during the entire trial in the manner prescribed by law. The great weight of authority is in harmony with this view.” Horne vs Rogers, 35 S. E. 715, 49 L. R. A. 176.
The Supreme Court of Wisconsin has sustained a like ruling, and said: “The presiding judge of a trial court is charged with the duty of trying the case from the opening to the close, and he ought not to abdicate his functions even for half an hour. During such an absence grave errors or abuses of privilege may occur, and this court may be left to conflicting affidavits of overzealous attorneys or parties in interest of interest to determine what in fact took place.” Smith vs Sherwood, 95 Wis. 558, 70 N. W. 682.
Mr. S. B. Fisher, in his article on trials in the Encyclopedia of Pleading and Practice, discusses the question as follow?: “With regard to prosecutions for felonies, the great majority of eases lay down and strictly enforce the general rule that the
In this case it appears that the judge went out of the court room, then crossed a hall 12 feet wide, and through another door passed into another room to urinate, and during his absence a controversy arose between opposing counsel. The judge certifies in the bill of exceptions that this controversy he did not hear. Then he must have been in a position where he could not hear the ’proceedings and direct the progress of the trial for a time, at least, during the course of the argument. If he had been present, there can be no doubt in the mind of any one acquainted with the scholarly dignity of the former chief justice of this court
The judgment is reversed for the error- indicated, and cause remanded for a new trial.