Allen v. Commonwealth

• Decision Date: 02 February 1888
• Citation: 6 S.W. 645,86 Ky. 642
• Parties: Allen v. Commonwealth.
• Court: Kentucky Court of Appeals

6 S.W. 645

86 Ky. 642

Allen v. Commonwealth.

Court of Appeals of Kentucky.

February 2, 1888

Appeal from circuit court, Barren county.

James Allen was indicted and tried for the crime of homicide, and from a conviction for manslaughter he appeals.

Lewis McQuown, for appellant.

P W. Hardin, for appellee.

HOLT J.

This is a conviction for manslaughter. At the close of the argument to the jury, they were properly put under the charge of an officer, the accused being remanded to jail, and the court adjourned for dinner. Upon assembling again, but in the absence of the accused, he being then in jail, the case was finally submitted to the jury, and they, under the charge of an officer, were sent to their room to consider of their verdict.

It is a rule of the common law that the trial of one charged with felony must be had in his presence. In Sperry's Case, 9 Leigh, 623, it was said: "The well-established practice in England and in this state is that a prisoner accused of felony must be arraigned in person, and must plead in person; and in all the subsequent proceedings it is required that he shall appear in person." This is his right. Judge Cooley says: "In cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present during the whole of the trial, and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdiction over the person, and the court cannot proceed with the trial, or receive the verdict, or pronounce the final judgment." Cooley Const. Lim. 319. Section 12 of our bill of rights provides "that, in all criminal prosecutions, the accused hath a right to be heard by himself and counsel;" and in the case of Temple v. Com. 14 Bush, 769, it was properly said: "The right to be heard by himself and counsel necessarily embraces the right to be present himself, and to have a reasonable opportunity to have his counsel present also, at every step in the progress of the trial; and to deprive him of this right is a violation of that provision of the fundamental law." In the case last cited, a judgment of conviction was reversed because the verdict was received in the absence of the accused, and when he was in jail. The constitution of Alabama contains a like provision; and in the case of State v. Hughes, 2 Ala. 102, a judgment based upon a verdict similarly received was reversed. The same result followed from a like cause in People v. Perkins, 1 Wend. 91. In Meece v. Com., 78 Ky. 586, it was held that instructions to the jury in a felony case should not be given or modified in the absence of the defendant, because he has a right to be present at every step taken in his case. This rule is well founded. The life or liberty of the accused is in peril. He has the right to see that nothing is done or omitted to his prejudice; and his presence may exert an influence in his favor with his triers. If so, he is entitled to the benefit of it.

Let us now see if the reason for the rule applies to the case in hand. When the jury are brought into court, they should be called, so that it may be known that all and only those selected are upon it. The accused has a right to know that those who retire to the jury-room to settle his fate are the same persons whom he has selected as his triers. The Criminal Code, by section 183, provides that the defendant must be present " during the trial" of a felony. This is but declaratory of the common law. The trial begins with the swearing of the jury, and ends when the verdict is rendered. Every step taken in the interim is a part of the trial. Submitting the case to the jury, and sending them to their room, is therefore a part of it, and should not be done in the absence of the accused. In addition to the reason for this already suggested, the Criminal Code provides, by section 245, for the selection and swearing of an officer to take charge of them. He is the only person who has access to them. He is in authority; and, if dishonest, might inflict great injury upon the defendant by influencing them against him. The latter has the right, therefore, to know who he is and to object to him if unfit, from bias or any other cause. The ground of objection may and is likely to be known only to the accused. He has also a right to see that he is sworn as required by law. Again, it is the duty of the court to deliver to the jury, when they retire to consider of their verdict, the indictment and the instructions; and by section 248, Crim. Code, "the jury may take with them all papers and other things which have been received as evidence in the cause." The defendant has a right to see that...