110 U.S. 574 (1884), Hopt v. People

Citation:110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262
Case Date:March 03, 1884
Court:United States Supreme Court

Page 574

110 U.S. 574 (1884)

4 S.Ct. 202, 28 L.Ed. 262




United States Supreme Court.

March 3, 1884


Page 575

[4 S.Ct. 202] Thos. J. Marshall, for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.



The plaintiff in error and one Emerson were jointly indicted in a court of Utah for the murder, in the first degree, of John F. Turner. Each defendant demanded a separate trial, and pleaded not guilty. Hopt, being found guilty, was sentenced to suffer death. The judgment was affirmed by the supreme court of the territory. But, upon writ of error in this court, that judgment was reversed, and the case remanded, with instructions to order a new trial. 104 U.S. 631. Upon the next trial, the defendant being found guilty, was again sentenced to suffer death. That judgment was [4 S.Ct. 203] affirmed by the supreme court of the territory. We are now required to determine whether the court of original jurisdiction in its conduct of the last trial committed any error to the prejudice of the substantial rights of the defendant.

1. The validity of the judgment is questioned upon the

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ground that a part of the proceedings in the trial court were conducted in the absence of the defendant. The Criminal Code of Procedure of Utah, § 218, provides that 'if the indictment is for a felony the defendant must be personally present at the trial; but if for a misdemeanor the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the prosecuting attorney, by an order or warrant, require the personal attendance of the defendant at the trial.' The same Code provides that a juror may be challenged by either party for actual bias; that is, 'for the existence of a state of mind which leads to a just inference in reference to the case that he will not act with entire impartiality.' Sections 239, 241. Such a challenge, if the facts be denied, must be tried by three impartial triers, not on the jury panel, and appointed by the court. Section 246. The juror so challenged 'may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.' Section 249. 'Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.' Section 250. 'On the trial of the challenge for actual bias, when the evidence is concluded, the court must instruct the triers that it is their duty to find the challenge true, if in their opinion the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial, and that if from the evidence they believe him free from such bias they must find the challenge not true; that a hypothetical opinion on hearsay or information supposed to be true is of itself no evidence of bias sufficient to disqualify a juror. The court can give no other instruction.' Section 252. 'The triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true the juror must be excluded.' Section 253.

It appears that six jurors were separately challenged by the

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defendant for actual bias. The grounds of challenge in each case were denied by the district attorney. For each juror triers were appointed, who, being duly sworn, were, 'before proceeding to try the challenge,' instructed as required by section 252 of the Criminal Code; after which, in each case, the triers took the juror from the court-room into a different room and tried the grounds of challenge out of the presence as well of the court as of the defendant and his counsel. Their findings were returned into court, and the challenge, being found not true, the jurors so challenged resumed their seats among those summoned to try the case. Of the six challenged for actual bias, four were subsequently challenged by the defendant peremptorily. The other two were sworn as trial jurors, one of them, however, after the defendant had exhausted all his peremtory challenges. No objection was made to the triers leaving the court-room, nor was any exception taken thereto during the trial. The jurors proposed were examined by the triers, without any testimony being offered or produced, either by the prosecution or the defense.

It is insisted, in behalf of the defendant, that the action of the court in permitting the trial in his absence of these challenges of jurors was so irregular as to vitiate all the subsequent proceedings. This point is well taken. The Criminal Code of Utah does not authorize the trial by triers of grounds of challenges to be had apart from the court, and in the absence of the defendant. The specific provision made for the examination of witnesses 'on either side.' subject to the rules of evidence applicable to the trial of other issues, shows that the prosecuting attorney and the defendant were entitled of right to be [4 S.Ct. 204] present during the examination by the triers. It certainly was not contemplated that witnesses should be sent or brought before the triers without the party producing them having the privilege, under the supervision of the court, of propounding such questions as would elicit the necessary facts, or without an opportunity to the opposite side for cross-examination. These views find some support in the further provision making it the duty of the court 'when the evidence

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is concluded,' and before the triers make a finding, to instruct them as to their duties. In the case before us the instructions to the triers were given before the latter proceeded with the trial of the challenges. But all doubt upon the subject is removed by the express requirement, not that the defendant may, but, where the indictment is for a felony, must be, 'personally present at the trial.' The argument in behalf of the government is that the trial of the indictment began after, and not before, the jury was sworn; consequently that the defendant's personal presence was not required at an earlier stage of the proceedings. Some warrant, it is supposed by counsel, is found for this position in decisions construing particular statutes in which the word 'trial' is used. Without stopping to distinguish those cases from the one before us, or to examine the grounds upon which they are placed, it is sufficient to say that the purpose of the foregoing provisions of the Utah Criminal Code is, in prosecutions for felonies, to prevent any steps being taken in the absence of the accused, and after the case is called for trial, which involves his substantial rights. The requirement is not that he must be personally present at the trial by the jury, but 'at the trial.' The Code, we have seen, prescribes grounds for challenge by either party of jurors proposed. And provision is expressly made for the 'trial' of such challenges, some by the court, others by triers. The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.

But it is said that the right of the accused to be present before the triers was waived by his failure to object to their retirement from the court-room, or to their trial of the several challenges in his absence.

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We are of opinion that it was not within the power of the accused or his counsel to dispense with statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by an individual, neither by the person himself, nor by any other of his fellow creatures merely upon their own authority.' 1 Bl. Comm. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with, or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Comm. 11. Such being the relation with the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony [4 S.Ct. 205] that he shall be personally present at the trial; that is at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the constitution. For these reasons we are of...

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