Boreing v. Beard

• Decision Date: 26 October 1928
• Citation: Boreing v. Beard, 226 Ky. 47, 10 S.W.2d 447 (Ky. Ct. App. 1928)
• Parties: BOREING v. BEARD et al.
• Court: Kentucky Court of Appeals

10 S.W.2d 447

226 Ky. 47

BOREING v. BEARD et al.

Court of Appeals of Kentucky

October 26, 1928

Appeal from Circuit Court, Franklin County.

Action for mandamus by John Boreing against H. M. Beard and others.Judgment for defendants, and plaintiff appeals.Affirmed.

John S Carroll and Carroll & Carroll, all of Frankfort, for appellant.

J. W Cammack, Atty. Gen., and Jas. M. Gilbert, Asst. Atty. Gen for appellees.

REES J.

The appellant, John Boreing, has been confined in the state penitentiary since February 10, 1925.On August 15, 1928, he filed a petition in the Franklin circuit court in which H. M Beard, warden of the penitentiary, and the members of the state board of charities and corrections, were made defendants.The plaintiff asked for a mandatory injunction to require the defendants to release him from the penitentiary.

The petition alleged in substance that at the January, 1925, term of the Letcher circuit courthe was tried under an indictment charging him with murder.The trial commenced on January 30 and was completed on January 31, 1925.During the trial he was in the custody of the Letcher circuit court, and when the case was submitted to the jury he was remanded to jail and the verdict was returned and received during his involuntary absence.The jury's verdict was guilty, and by it his punishment was fixed at confinement in the state penitentiary for a period of 15 years.He was thereafter brought into court and sentence pronounced upon him.It was further alleged in the petition that by reason of his involuntary absence at the time the verdict was rendered and received he was deprived of his constitutional and statutory rights and the Letcher circuit court deprived itself of its jurisdiction to proceed further or to enter any judgment in accordance with the verdict, and that the judgment of the Letcher circuit court sentencing him to serve 15 years in the penitentiary is void and his present confinement is without authority of law.The defendants filed a special demurrer to the petition, which was sustained.From a judgment dismissing the petition, plaintiff has appealed.

The sole question presented on this appeal is: Was the judgment of the Letcher circuit court void because of appellant's involuntary absence at the time the verdict was returned, or was the reception of the verdict in his absence an error rendering the judgment only voidable?

It is conceded that if the judgment of the Letcher circuit court was only voidable the lower court properly sustained appellees' special demurrer and that Boreing is not entitled to his discharge, since the error was one that should have been corrected on appeal from the judgment of the trial court.On the other hand, if the judgment of the Letcher circuit court is void, its enforcement could be enjoined in a court other than the one in which the judgment was rendered and the lower court erred in sustaining the special demurrer.Adams Express Co. v. Bradley,179 Ky. 238, 200 S.W. 340.

It appears that Boreing appealed from the judgment of the Letcher circuit court; but his involuntary absence when the verdict was returned was not relied on as a ground for reversal.The judgment was affirmed on November 27, 1925.Boreing v. Commonwealth,211 Ky. 474, 277 S.W. 813.It is conceded by appellees that to receive the verdict in the absence of appellant was error, but they insist that it was such an error as should have been called to the court's attention on the appeal from the judgment of the Letcher circuit court, and, having failed to raise this point in his motion and grounds for a new trial and his bill of exceptions when appealing to this court, he waived any right to raise the question after the judgment has been affirmed.

This court has uniformly held that the involuntary absence of the accused at the time the verdict is returned, or at the time any other material step is taken during the trial, constitutes reversible error.Riddle v. Commonwealth,216 Ky. 220, 287 S.W. 704;Kokas v. Commonwealth,194 Ky. 44, 237 S.W. 1090;Allen v. Commonwealth,86 Ky. 642, 6 S.W. 645, 9 Ky. Law Rep. 784;Temple v. Commonwealth,14 Bush, 769, 29 Am. Rep. 442.But in none of these cases was there an intimation that the judgment was void.

Section 11 of our Constitution provides in part:

"In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor."

Section 183 of the Criminal Code reads:

"If the indictment be for a felony, the defendant must be present, and shall remain in actual custody during the trial; unless his bail appear personally in court, and consent that he may remain on bail, in which case he shall be placed in actual custody when the case is finally submitted to the jury.If he escape from custody after the trial has commenced, the trial may either be stopped or progress to a verdict, at the discretion of the commonwealth's attorney; but judgment shall not be rendered until the presence of the defendant is obtained."

And section 267 of the Criminal Code reads:

"Upon a verdict being rendered, the jury may be polled, at the instance of either party, which consists of the clerk or judge asking each juror if it is his verdict, and if one answer in the negative the verdict cannot be received."

The right of one accused of crime to be present at the rendition of the verdict and at all other stages of the trial is universally recognized.The right is one guaranteed to him by the Constitution and statutes of all the states, so far as we are aware.But as to the effect of the absence of one accused of crime at any stage of his trial, the decisions of the various courts are not in harmony.Some courts hold that the involuntary absence of the accused during any material stage of the trial renders the judgment void, while others hold that the judgment is only voidable.This seems to depend upon whether or not the right is one that can be waived by the accused.

Some of the cases in which it is held that the right of the accused to be present at all stages of his trial cannot be waived by him are: State v. Reed,65 Mont. 51, 210 P. 756;State v. Vanella,40 Mont. 326, 106 P. 364, 20 Ann. Cas. 398;Noell v. Commonwealth,135 Va. 600, 115 S.E. 679, 30 A. L. R. 1345;State v. McCausland,82 W.Va. 525, 96 S.E. 938;Emery v. State,57 Tex. Cr. 423, 123 S.W. 133, 136 Am. St. Rep. 988.

Some of the cases in which it is held that the right of the accused to be present at the rendition of the verdict and at other stages of the trial may be waived by him are: Clemens v. State,176 Wis. 289, 185 N.W. 209, 21 A. L. R. 1490;State v. Way,76 Kan. 928, 93 P. 159, 14 L. R. A. (N. S.) 603;Davidson v. State,108 Ark. 191, 158 S.W. 1103, Ann. Cas. 1915B, 436;State v. Simon,101 N. J. Law, 11, 127 A. 570;Blagg v. State(Okl. Cr. App.)254 P. 506;State v. Thompson(N. D.)219 N.W. 218;Frank v. State,142 Ga. 741, 83 S.E. 645, L. R. A. 1915D, 817;Frank v. Mangum,237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969;Commonwealth v. McCarthy,163 Mass. 458, 40 N.E. 766;Sahlinger v. People,102 Ill. 241.

In Clemens v. State, supra, both the accused and his counsel were voluntarily absent at the rendition of the verdict, and it was held that their right to be present at the time of the reception of the verdict and the right to poll the jury had been waived.In State v. Way, supra, it was held that the right of the accused to be present when a verdict is rendered secured to him by the statutory provision that "no person indicted or informed against for a felony * * * can be tried unless he be personally present during the trial," is one that may be waived.In Davidson v. State, supra, the accused was convicted of murder in the first degree and was voluntarily absent at the rendition of the verdict.In construing the statute which provided that the defendant"must be present during the trial,"the court said:

"The list of authorities cited by counsel for appellant discloses decisions to the effect that in capital cases the accused cannot waive his presence when the verdict is received or at any other substantive step in his trial; and there are a few decisions to the effect that, even in felony cases other than capital, the accused cannot waive his presence at any step in the progress of the trial.

It may be said here, however, without further discussion, that according to the great weight of authority, in felony cases other than capital, the accused may waive his presence."

In commenting on the cases of Sherrod v. State,93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.) 509, andHopt v. Utah,110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262, the court further said:

"It will be thus seen that that court based its conclusions on the ground that the accused could not waive his presence for two reasons, one, that the power of the court to act depended upon the presence of the accused, and, next, that the public interest in the result of the trial deprived him of the power to give his consent to his absence.

These grounds are, we think, far from tenable, and neither of the cases quoted from above appeals to us as stating sound conclusions; nor are the conclusions reached there in accordance with the decisions of this court.

The power of the court to proceed does not depend upon the personal presence of the accused.Only his right to be present is guaranteed by the Constitution and laws of this State.Any other construction of the constitutional provision would render invalid the statute which provides that, if the accused escape from custody after the trial has commenced or, if on bail,...