78 Mo. 256 | Mo. | 1883
Lead Opinion
Defendant was indicted for an assault with.
“ That is my pistol; lay it down where you got it.” Miller-said : “ I took this pistol from Galloway and did not get it from the stable, but, if it is yours, I will give it to you when Galloway gets started, but will not lay it down.” Miller and Galloway then started to leave the house, when defendant said: “ That is my pistol, and I am going to have it,” and thereupon drew his pistol and fired at Miller, the ball taking effect in his side. He fired a second shot which struck Miller in the head.
The prosecuting attorney also stated in his closing argument to the jury: “ That after defendant had fired the shot that felled Miller to the floor, he jumped out of the back door and fled, leaving Miller weltering in his gore.” Defendant’s counsel insists that this was a gratuitous statement, unsupported by any evidence in the cause. Norrid testified that defendant “fired on Miller, and, as Miller turned, he fired again, and Miller fell from the shot, and Hoffman ran out of the south door into the field.”
The 22nd section of the. Bill of Rights declares that: “ In criminal prosecutions the aooused shall have the right to appear and defend in person and by counsel.” If the record only failed to show the presence of the defendant when his motion for new trial was heard and determined, the cases cited by the State’s counsel would be in point; but this record shows, not only that he was absent at the argument and final action of the court on the motion, but that the court refused his request, made by his counsel, that he might be present. In the State v. Underwood, 57 Mo. 40, the accused was present at the final argument and determination of his motion, and the complaint was, that there had previously been a brief discussion of the points made by his motion for a new trial in his absence. In the State v. Brown, 63 Mo. 438, the record did not show the presence of defendant at the hearing of his motion, but no such request as was made in the case at bar was made by Brown, and the court based its opinion upon the provision of the statute: “ That no person indicted for a felony can be tried unless he is personally present at the trial,” holding: “ That the motion for a new trial concedes that a trial of the issues has taken place, * * and is not such a proceeding as is contemplated by the statute or embraced within its terms.” The question here presented is a very different question from that which arose in Broion’s case. The accused demanded his right, under the constitution, to be present, not at the trial in the technical narrow sense of the statute, as construed in the Brown case, for the constitution has no such restricted meaning, but to appear and defend throughout the proceeding against him, which is pending in the trial court until the determination of the cause 'by the rendition of a judgment. If the court could refuse to permit the accused to be present, with equal propriety it could exclude his counsel. The constitution does
The judgment is reversed and the cause' remanded.
Dissenting Opinion
Dissenting. — If no error was committed during the trial of the canse, as the foregoing opinion admits, I am unable to see why the judgment should be reversed. Will it he seriously contended that the defendant, had he been, present at the argument of the motion, could have made error appear, when none existed ?