Parker v. United States, 6133.
| Decision Date | 10 October 1950 |
| Docket Number | No. 6133.,6133. |
| Citation | 184 F.2d 488 |
| Parties | PARKER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
W. A. Hall, Jr., Richmond, Va., for appellant.
Bryce R. Holt, U. S. Atty., Greensboro, N. C. (R. Kennedy Harris, Greensboro, N. C., and Theodore C. Bethea, Asst. U. S. Attys., Reidsville, N. C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from the denial of a motion made under 28 U.S.C.A. § 2255 to vacate a judgment and sentence of imprisonment in a criminal case. The ground of the motion was that defendant was not present in court during the examination of certain witnesses. We think it perfectly clear that the motion was entirely without merit and was properly denied.
After a trial lasting many weeks, appellant was convicted of the crime of fraudulently evading the payment of income tax. On October 10, 1949, when the trial was drawing to a close, the case was continued to October 12th on account of the illness of counsel; and defendant, who was at large on bail, returned to his home some distance from the city in which court was being held. When he was returning to court on the 12th, he was involved in an automobile accident in which he sustained injuries that necessitated his being carried to a hospital. When court convened on the morning of October 12th, appellant was not present because of the injuries he had sustained; but neither court nor counsel knew of his injuries and assumed that he had misunderstood the hour of convening or had been temporarily delayed. His own counsel suggested that the hearing proceed in his absence and five witnesses were examined before it was learned that he had been injured. The court then adjourned the hearing until October 25th.
When the court convened on October 25th, appellant was present and had been furnished with a transcript of the testimony of the witnesses who had been examined in his absence. He did not object to their testimony, ask to examine them further, move to exclude their testimony from the consideration of the jury, move for a mistrial, or take any other action indicating that he objected or excepted to what had been done. On the contrary, his counsel, who embraced a number of able trial lawyers, proceeded with the trial and submitted the case to the jury after full argument, without even a suggestion that any point was made with regard to the absence of appellant from court on October 12th. No such point was made when verdict of guilty was returned or sentence entered, nor in the motion for new trial which assigned nine separate grounds for setting aside the conviction. No appeal was taken from the judgment of the court, and after a stay of sentence granted to enable him to make certain business arrangements, defendant entered upon the service of his sentence. Not until some months later was the motion made under 28 U.S.C.A. § 2255, when for the first time the point was raised as to appellant's absence from court on October 12th.
It is well settled that, in cases not capital, an accused on trial for crime may waive his right to be present and that voluntarily absenting himself from court after the trial has commenced constitutes such waiver. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, Ann.Cas. 1913C, 1138. While the defendant may not be said to have voluntarily absented himself from court on October 12th, in view of his injury in the automobile accident, he unquestionably waived his presence during the examination of the witnesses whose testimony was then taken by afterwards proceeding with the trial, with full knowledge of the facts and without objection, and taking his chance before the jury that had been empaneled to try him. See Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L. Ed. 969. The fact that the right to be present at one's trial is a constitutional right does not mean that it may not be waived or that any right to insist upon its infringement must not be asserted in apt time. 23 C.J.S., Criminal Law, § 1009, page 376; 16 C.J.S., Constitutional Law, § 91, page 198. The right to be...
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