Bagwell v. State

Decision Date08 August 1907
Citation58 S.E. 650,129 Ga. 170
PartiesBAGWELL v. STATE.
CourtGeorgia Supreme Court

Syllabus by the Court.

In a prosecution for a felony, the accused has the right to be present at every stage of the trial; and where the court in such a case, without the consent of the accused and during his enforced absence, he being confined in jail, ordered a mistrial because of the inability of the jury to agree, on a subsequent trial of the same case it was error, requiring a reversal, to strike a plea setting up such unauthorized mistrial and the former jeopardy of the accused.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 331.]

The case of Lester v. State, 33 Ga. 329, wherein the decision, as applied to the facts, is contrary to the above ruling, being under review, is overruled.

Error from Superior Court, Fayette County; E. J. Reagan, Judge.

Foote Bagwell was convicted of murder, and brings error. Reversed.

Blalock & Culpepper and W. R. Daley, for plaintiff in error.

O. H B. Bloodworth, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

FISH C.J.

On his trial, under an indictment for murder, Foote Bagwell pleaded in substance, that at a former term of the court he had been put on trial under the same indictment, and after the case had been submitted to the jury the court, without his consent and in his absence, he being at the time confined in jail and in the absence of his counsel, discharged the jury without a verdict on the ground of their inability to agree. This plea was stricken on demurrer, to which ruling the accused excepted pendente lite. There was a verdict of guilty, with recommendation to life imprisonment. The case is before this court on writ of error sued out by the accused, assigning error upon his exceptions pendente lite and upon the overruling of his motion for a new trial.

"No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial." Const. art. 1, par. 8; Civ. Code 1895,§ 5705. In Oliveros v. State, 120 Ga. 237, 47 S.E. 627, it was held, in effect, that a mistrial declared, not for legal cause, but, as in that case, erroneously, is a bar to another trial. And in Lovett v. State, 80 Ga. 255, 4 S.E. 912, Chief Justice Bleckley said: "It is not disputed that, where a mistrial has been properly declared, the prisoner may be again tried"-citing Nolan v. State, 55 Ga. 521, 21 Am.Rep. 281, and the Constitution of 1877, as above quoted. In Judge Bleckley's language there is a clear intimation that, where a mistrial has been improperly declared, the prisoner cannot be again tried. In this state it has been settled, as far back as Williford's Case in 23 Ga. 1, that the court may, over the objection of the accused, order a mistrial on account of the inability of the jury to agree, and that the discharge of the jury on that account does not amount to an acquittal. The question now before us is: Can the court, even for good cause, legally order a mistrial in the enforced absence of the accused and without his consent; and, if it cannot, has the accused, where a mistrial has been so ordered, been placed in jeopardy, which he may plead when again put on trial? It has been frequently held by this court that it is the right of the accused charged with a felony to be present at every stage of his trial, including his arraignment or waiver thereof (Wells v. Terrell, 121 Ga. 368, 49 S.E. 319), reading to the jury notes of the evidence taken by the court (Wade v. State, 12 Ga. 25), the argument of counsel for the state (Tiller v. State, 96 Ga. 430, 23 S.E. 825), during the charge of the court ( Hopson v. State, 116 Ga. 90, 42 S.E. 412, and citations, Id.), and at the rendition of the verdict (Nolan v. State, 53 Ga. 137; 55 Ga. 521, 21 Am.Rep. 281; Barton v. State, 67 Ga. 653, 44 Am.Rep. 743).

In Wade's Case, supra, the court, after the jury had retired to consider the case, had them recalled to the courtroom and read over to them, in the absence of the accused, the written testimony as taken down by the court. In the opinion rendered Judge Warner said: "This was clearly error. The court has no more authority, under the law, to read over testimony to the jury, affecting the life or liberty of the defendant in his absence, than it has to examine the witnesses in relation thereto in his absence. The defendant has not only the right to be confronted with his witnesses, but he has also the right to be present, and see and hear, all the proceedings which are had against him on the trial before the court. It is said the presumption must be that the court read over the testimony correctly, and read over all that was delivered against the defendant, and therefore he was not injured. The answer is that it was the legal right and privilege of the defendant to have been present in court when this proceeding was had before the jury in relation to the testimony delivered against him, and he is to be considered as standing upon all his legal rights, waiving none of them." In Hopson v. State, supra, it was held: "Recalling a jury in a criminal case, who had retired to consider of their verdict, and, in the absence of the accused and his counsel, and without their consent, giving a second charge, is cause for a new trial, even though this charge be the same, in substance, as that which had been delivered in the first instance." Mr. Presiding Justice Lumpkin, in the opinion rendered in that case, said: "Nor does the fact that the 'recharge' was, in substance, the same as the original charge, dispense with the necessity for ordering a new trial. The great point is that the accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically...

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