Stubbs v. State, 49 Miss. 716

49 Miss. 716 | Miss. | 1874

TaRbell, J.,

delivered the opinion of the court:

The plaintiff in error was indicted, tried and convicted of the crime of murder. The only point made here, is, that the record does not show, affirmatively, the presence of the accused, throughout the trial, and particularly, that it does not show his presence when the verdict of the jury'was returned, nor when the motion for a new trial was made, and overruled.

The record states the presence, distinctly, of the accused, on each day of the trial, down to the 19th day of October, 1872, the twelfth day of the term, at which the trial was had, on which last day the entry is this: “ Saturday morning, eight o’clock, October 19th, 1872, court met pursuant to the adjournment of yesterday; present, the same as yesterday, the Hon. Uriah Millsaps presiding.”

The entry on the 18th, or the day previous to the foregoing, was as follows: “This day comes the district attorney, who prosecutes on behalf of the State of Mississippi. And the said defendant being brought into open court and placed at the bar thereof, and also appearing by his counsel.”

One.question is, whether the entry of the 19th, to-wit: “Present the same as yesterday,” is an affimative statement of the presence of the accused. Can his presence be inferred, even from that entry ? Does the entry import more than the presence of the court, and the usual official ? As to the motion for a new trial, the record says: “And after-wards, to-wit: On the 26th day of October, 1872, being the 18th day of the term the following proceedings and orders were had and entered on the minutes of said court, to-wit:” Then follows the motion, beginning with the title of the cause, and proceeding thus: “ The defendant moves the court for a new trial,” on the following grounds, which are given and signed by counsel. This motion was overruled, and then, on the same day, follows this entry: (Tide of the cause.) “ This day comes the district attorney, who prosecutes on behalf of the State of Mississippi. And the said defendant being brought into open court, placed at the bar thereof, and caused to stand up,” etc., when sentence was pronounced.

Does the record show, affirmatively, or even inferentially, the presence of the accused, pending the motion for a new trial? Is his presence necessary on a motion between verdict and sentence ?

The questions raised on the face of the record are certainly very technical, and as the attention of the court below was not called to the points now made, they would not be entertained, except in higher grades of crime. 1 Bish. Or. Pr., §§ 422-428: ib.. § 638. et seq.; ib., § 827? ib., § 829, et seq.; Dyson v. The State, 26 Miss., 364; Code, §§ 2799-2805 ; ib., § 2884; Scaggs v. The State, 8 S. & M., 722.

If evidence was submitted to the jury, on the day the verdict was rendered, as the record appears to state, then, a constitutional right was denied the accused. Const., art. 1, § 7. On this point the record is indistinct.

Another and material rule is this, that the Verdict, in cases of felony, must be delivered in open court, and in the pre-séncé of the defendant. 1 Ch. C. L., 636. This rule, say the Court, in Price v. The State, 36 Miss., 531, “ is founded on two reasons ; first, the right of the defendant to be present, and to see that the verdict is sanctioned by all the jurors ; and, secondly, in order that the defendant, if convicted, may be under the power of the court, and sübject to its judgment. The right of the defendant to be present, proceeds upon the presumption that he is in custody, and has ho power to be present, unless ordered by the court to be brought into court. But, under our law, he may waive that right. If he is not in custody, so as to be deprived of the power to attend, it would seem that the reason of the rule as to his right to be present Would fail; for he is voluntarily absent when he ought to be present and cannot complain of the consequences Of his own voluntary act.” The Voluntary absence of the defendant in that case,- was" held to be a waiver of his right to be present, he being under recognizance, and the court said, “ his own illegal act should not be permitted to thwart the process of the law to his advantage.” He Was present at the opening of the trial, and Voluntarily absented hiinself at the rendition of the Verdict.

In the case at bar the accused Was in custody, and subject to the orders of the court.

Seaggs v. The State, 8 S. & M., 722, is quite analogous to the case under consideration. It was insisted in that case, as in this, that the point made in the appellate court was not raised in the court below. The coui't say: “ The error which first protrudes itself to notice, is the circumstance that it does hot appear that the prisoner Was present during the whole of the trial of the indictment. The Only evidence of his presence at all is contained in a bill of exceptions, where he is stated to havé ashed some questions Of a witness, but lie does not appeal- to have been confronted by the witnesses against him, which was his constitutional right. Const., art. 1, sec. 10. It must appear in this class of crimes, that the accused was present during his trial, or it will be error. The presence of the prisoner cannot be inferred, but must appear affirmatively, and for all that appears in this record, the questions directed to the witness by him, might have been propounded in writing.”

The rule declared in Scaggs v. The State, is repeated in Dyson v. The State, 26 Miss., 383, the court in the latter case saying, “ that the record must affirmatively show those indispensable facts, without which the judgment would be Void — such as the organisation of ‘the court; its jurisdiction of the subject-matter, and of the parties; that a cause was made up for trial; that it was submitted to a jury sworn to try it; that a verdict was rendered, and judgment awarded.” And it is added, that “Out of abundant tenderness for the right secured to the accused by our constitution, to be confronted by the witnesses against him, and to be heard by himself or counsel, our court has gone a step further, and held that it must be shown by the record that the accused was present in court pending the trial.” This, it is further said, is upon the ground of the peculiar sacredness of this high constitutional right.

In Wolfe & George v. Martin, 1 How., 30, it is declared to be “ an acknowledged principle that nothing can be presumed for or against a record except what appears substantially upon its face.”

This rule is explained in Dyson v. The State, to have reference “ to those indispensable requisites necessary to the validity of the record as a judicial proceeding,” and that it has “ no application to those incidental matters which transpire during the progress of the proceeding in court.”

As to the necessity of the presence of the accused pending the trial, see Kelly & Little v. The State, 3 S. & M., 528; 12 Wend., 344; 7 Cow., 525; 13 Gratt, 763; 7 Ohio; pt. 1, 180 ; 6 Barr, 584; 6 Ired, 164; § Pike,431; 10 Mod., 248 ; 19 Johns., 39 ; Prim v. Com, 6 Harris, Pa., 103; 1 Parker, C. C., 474; Rex v. Harris, 1 Ld. Raym, 267; 4 Harris, Pa., 129; 31 Me., 592.

The rule that the accused, in cases of felony, must be present in person pending the trial, and that this must be affirmatively shown by the record, as we have seen, is not an open question in this State. See cases cited, herein.

Running through all the authorities, with regard to this rule, there is a clear distinction between felonies and misdemeanors. 1 Bish. Cr. Pr., § 684, et seq.; 25 Vt., 93 ; 19 Ark., 214; Sprague, 227; 4 Cal., 238 ; 1 Curtis, C. C., 433; 3 S. & M., 518; 2 Hilt., 523 ; 16 Vt., 497; 2 C. & P., 413 ; 1 Salk., 55; 12 Wend., 344; 3 Denio, 98; 1 Va. Cas. 172; 1 Parker, C. C., 360; 3 Burr, 1786 ; 4 Harris, Pa., 129 ; 7 Cow., 525 ; 2 Hen., C. C., 459 ; 6 Eng. L. and Eq., 352.

As to the application ' of the rule to motions between verdict and sentence, there is some diversity in the adjudications to the extent, that a simple question of law may be argued in the absence of the accused, but the better opinion is, that the rule should be adhered to in felonies from the arraignment to the final sentence. 1 Bish., Cr. Pr., § 685 ; 14 Ind., 573; 1 Ch., Cr. L., 492; 10 Harris, Pa., 94; 9 Cal., 115; 1 Bish., Cr. Pr., § 692.

The result in this, as in many similar cases, is of course, in consequence of the neglect of the clerk, through his inexperience or other cause. Hence, a special obligation devolves on circuit judges and district 'attorneys to see that the entries of their proceedings are properly made. A caieful observance of this duty would leave causes to be determined upon their merits. When the life or liberty of a human being is involved, there are “ indispensible requisites,” as stated in Hyson v. The State, which can not be overlooked by an appellate court. The observance of which can not, according to the authorities cited, be inferred or presumed. The cost and trouble to the State and to' parties, caused by defective records, is very considerable, and this expense might, possibly, be not unjustly cast upon inattentive clerks. If not corrected by these admonitions, legislation may become indispensable.

The judgment in this case will.be réversed, but the accused will be detained in custody, subject to the action of the proper court.

Judgment reversed, cause remanded, and a new trial awarded.