294 N.W. 433 | Neb. | 1940
This case presents the question: In a criminal case where a felony is charged, is it prejudicial error, requiring a reversal of a judgment of guilt, for the trial court, without notice to and in the absence of the defendant and his counsel, to make an oral statement to the jury while that body is deliberating upon their verdict. We conclude that a reversal is required.
Defendant was convicted of the crime of manslaughter. At 8:45 a. m., some thirty-six hours after the cause had been submitted to them, and while they were deliberating, the jury reported in the courtroom. The regular hour for convening of court is 9 a. m. Neither defendant nor his counsel were present, nor were they notified to be present. Apparently, the county attorney was not present. The court addressed the jury orally, and the following discussion was had, the official reporter making the customary stenographic notes. The court asked the foreman if they had arrived at a verdict. Being told that they had not, the court commented upon the length of time that they had been deliberat
Defendant, in his motion for a new trial and before this court, assigns this discourse as an error.
The defendant urges that the above statement to and with the jury was an invasion of his undoubted right to be present personally at all steps of the trial; that it constituted a comment to the jury as to the nature of the evidence; that it suggested the manner of their deliberations; that it found fault with the manner of their procedure; that it constituted an instruction to the jury not in writing; that it constituted an oral explanation of the instructions; that it tended to coerce the jury to reach a verdict; that the second reference to the penalty indicated that the court expected the jury to render a verdict of guilty; and that it told the jury their verdict would be immune from criticism.
This discourse on the part of the trial court violated the constitutional and statutory right that inheres fundamentally in the defendant’s right to a jury trial, i. e., the right of a defendant when charged with the commission of a felony to be present personally at all times during his trial.
“The right of trial by jury shall remain inviolate.” Const, art. I, sec. 6.
“In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel.” Const, art. I, sec. 11.
“No person indicted for a felony shall be tried unless
Under section 29-2001, “Defendant has a right to be present at all times when any proceeding is taken during the-trial, from the impaneling of the jury to the rendition of the verdict, inclusive, unless he has waived such right; and, it being a personal right to the defendant, the waiver thereof, if permitted, must be by him personally, and not by his attorneys.” Scott v. State, 113 Neb. 657, 204 N. W. 381.
The defendant and his counsel are not obligated to remain constantly in the courtroom throughout the days and nights of the jury’s deliberations in order that the accused may protect his rights. The defendant had the right to be present in the courtroom when this action was taken and to have his counsel there in order that he might have the advantage at every stage of the trial of the legal knowledge, training, and skill which his attorney possesses, and which presumptively he himself does not possess. It was the duty of the court not to resume the proceedings of the trial unless the defendant and his counsel were present.
“When the legislature has provided specific rules of court procedure intended for,the protection of litigants, the courts should not countenance a flagrant departure therefrom.” Dow v. Legg, 120 Neb. 271, 231 N. W. 747.
The state takes the position that defendant’s counsel learned at 8:55 a. m. that the court had orally addressed the jury, and elected to do nothing about it; that no objection was made prior to the verdict; that corrective instructions were not requested nor a motion for a mistrial made; and contends that, having taken a chance on a favorable verdict, the defendant is now foreclosed from securing a new trial. Citing Long v. Crystal Refrigerator Co., 134 Neb. 44, 277 N. W. 830; Janesovsky v. Rathman, 107 Neb. 165, 185 N. W. 411; Bunting v. Oak Creek Drainage District, 99 Neb. 843, 157 N. W. 1028; Ford v. State, 46 Neb. 390, 64 N. W. 1082.
There is no showing that the defendant knew anything
The state cites the following provisions of the statute: “No judgment shall be set aside, or new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission, or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.” Comp. St. 1929, sec. 29-2308. The state argues that it is our duty to examine the “entire cause” and determine whether or not a “substantial miscarriage of justice has actually occurred” and that, “if from an examination of the competent evidence it clearly appears that the defendant is guilty, then the errors should be disregarded.”
A sufficient answer to this argument is found in Scott v. State, 121 Neb. 232, 236 N. W. 608.
To do as the state suggests would be for this court to
Reversed and remanded.