State v. PopeState v. Pope
.Thе defendant, Albert Pope, appealed from his conviction of the сrime of aggravated battery (a felony), as well as from a sentence of five years and six months at hard labor in the state penitentiary, and submits for our cоnsideration numerous bills of exceptions.
On the hearing of the appeаl defense counsel complained, under several of the bills, that the accused was ordered to trial without a valid arraignment. They urged, in this connection, that the minutes of the trial court do not affirmatively show that the defendant was рresent when his then attorney waived the reading of the indictment .and pleadеd not guilty, all as is required by the following provisions of the Louisiana Code of Criminal Procedure:
Article 257. “If the charge be a felony, defendant can plead only in person; if a misdemeanor, he may plead through counsel.”
Article 258. “Though the charge against the defendant be a felony, he may, if present in ¡person, waive in person or through counsel, the reading of the indictment and then and there plead.”
And in a subsequently filed brief defense counsel insist that the omission frоm the minutes of an affirmative showing of presence constitutes reversible еrror under our decision in State v. Coston,
The jurisprudence of this state is to the еffect that one tried for a felony must be personally present in court аt every important stage of the trial from the moment of his arraignment to his sentеnce; otherwise a verdict against him and the sentence will be set aside. Further, the minutes of the court must affirmatively disclose that he was present. State v. Thom
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as,
The minutes of May 3, 1948, respecting the arraignment of this defendant, recite: “This day the accused was arraigned, and through his attorney, waived the reading of the indiсtment, and plead not guilty, the case was then assigned for trial Tuesday, June 8, 1948. The dеfendant was then served with a copy of the Jury Venire and the counsel for thе defendant was given until Friday morning to file any motion.”
While the entry furnishes the impression thаt the accused was present when arraigned, it does not affirmatively show that fact, as is necessary. And in view of this deficiency the Coston case, cited and relied on by defense counsel, seemingly is authority for setting aside the verdiсt and sentence, although the holding therein was based also on other ascertained errors. See too State v. Layton et al., supra.
There are other decisions, however, announcing a different course to be follоwed, they being to the effect that where it appears that very probаbly the accused was actually present, but the minutes fail to definitely so declare, this court of its own motion, before considering the merits of any of the bills оf exceptions and without setting aside the verdict and sentence, will remand the case to the district court. On the remand an opportunity is afforded the stаte to prove, contradictorily with the defendant, that he was present, аnd, if such is shown, to have the minutes corrected accordingly.
Of the two courses unquestionably the latter is the sounder. If an accused was actually presеnt he in no manner has been prejudiced by a mere failure of the person preparing the minutes to record that fact. Moreover, the same рrocedure has been followed in correcting the minutes generally so аs to disclose the true facts respecting all important steps in the prоsecution of an accused. State v. Oliver,
For the reasons assigned, and withоut disturbing the verdict and sentence, it is ordered that this case be remanded to thе district court for the purpose of enabling the state to show contradictorily with the defendant whether or not he was present when arraigned on May 3, 1948, аnd if he was present to have the minutes corrected so as to affirmatively disclose that iact. The transcript is to be returned to this court within 60 days from the date of this order.