Chance v. State
Decision Date | 24 September 1923 |
Docket Number | (No. 3469.) |
Citation | 156 Ga. 428,119 S.E. 303 |
Parties | CHANCE. v. STATE. |
Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Bulloch County; H. B. Strange, Judge.
R. H. Chance was convicted of murder, and he brings error. Reversed.
E. K. Overstreet, of Sylvania, Anderson & Jones, of Statesboro, and G. C. Dekle, Willie Woodrum, and E. G. Weathers, all of Milieu, for plaintiff in error.
A. S. Anderson, Sol. Gen., and Jas. A. Dixon, both of Millen, R. Lee Moore, of Statesboro, H. A. Boykin, of Sylvania, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.
HILL J. R. H. Chance was indicted for the murder of Watson Allen, and the jury returned a verdict of guilty, with a recommendation to the mercy of the court. The defendant filed his motion for a new trial, which was overruled, and he excepted.
1. The tenth ground of the motion for new trial is as follows:
This ground of the motion is supported by a number of affidavits. In approving the grounds of the motion for new trial, the presiding judge appended the following note:
The Constitution of this state provides that every person charged with an offense against the laws of this state shall be confronted with the witnesses testifying against him. Article 1, § 1, par. 5 (Civil Code 1910, §, 6361). In Wade v. State, 12 Ga. 25, this court held:
"It is error for the court, on the trial of a criminal cause, after the jury have retired to their room to consider of their verdict, to call them back in the courtroom, and read over to them the evidence taken down by the court, without the consent of the prisoner's counsel, and in the absence of the prisoner."
In the opinion it was said:
In Wilson v. State, 87 Ga. 583, 13 S. E. 566, this court held:
"On a trial for murder, it is the right of the accused to be present at all stages of the proceeding, and it is the duty of the court to see that he is present when any charge is delivered to the jury."
In delivering the opinion of the court in the Wilson Case, Chief Justice Bleckley said:
In Tiller v. State, 96 Ga. 430, 23 S. E. 825, this court held:
The above cases are in point under the facts of this case. It is well settled in this state that one who is on trial for murder is entitled personally to be present at every stage of the trial, as held by the foregoing and other cases to the same effect. See Frank v. State, 142 Ga. 741, et cit. 83 S. E. 645, L. R. A. 1915D, 817. There is nothing in the present case to indicate that the defendant waived his right to be present when the court, counsel, and jury went to inspect the automobile which had been offered in evidence. The ground of the motion for new trial recites that the defendant at the time was in the custody of the law, and he therefore could not go with the court and jury without the authority of the court. It is no answer to what has been said above to say that the court thought that the defendant was present with the court and counsel and jury when the automobile was inspected. It was the duty of the court to see by ocular demonstration, as expressed by Judge Bleckley, that the defendant was present. It was the right of the defendant to be present when the automobile was being inspected, in order to make any suggestions by himself or through his counsel with respect thereto that he might deem necessary or proper for his defense; and being detained in the courthouse and being deprived of this important right, we are of the opinion that a new trial should be granted in this case. In the case of Martin v. State, 51 Ga. 567, this court held:
"When a jury, on the trial of a criminal case, have retired to consider of the verdict, and have been called back by the court to be recharged, it is the right of the defendant to have his counsel present, and he does not lose this privilege unless by a clear and distinct waiver thereof."
And see Brown v. State, 151 Ga. 497, 107 S. E. 536.
2. None of the head notes, except the first require elaboration.
3. Other assignments of error not specifically dealt with are without merit.
Judgment reversed.
All the Justices concur, except
BECK, P. J., and HINES, J. (dissenting). We do not take issue with any ruling made in the cases cited on this subject by our associates, as follows: Wade v. State, 12 Ga. 25; Wilson v. State, 87 Ga. 583, 13 S. E. 566; Tiller v. State, 96 Ga. 430, 23 S. E. 825; Frank v. State, 142 Ga. 741, 83 S. E. 645, L. R. A. 1915D, 817; Brown v. State, 151 Ga. 497, 107 S. E. 536. We do point out that the principle quoted from Martin v. State, 51 Ga. 567, has been modified by Robertson v. State, 135 Ga. 654, 656, 70 S. E. 175. In our opinion, notwithstanding the fact that the accused had the undoubted right to be present throughout the trial, and to see and hear everything that took place, whatever error was committed against him under the facts stated, he waived his right to complain by withholding all objection and allowing the trial to proceed until the rendition of the verdict against him, thus taking his chances upon an acquittal. There is no express constitutional or statutory provision making it obligatory that the accused be present at all stages of the trial. The principle is evolved from that clause of the Constitution above mentioned with regard to the right of the accused to be confronted by the witnesses. We readily concede that it is the safe and proper practice upon the part of trial judges to see that the accused is present at all stages of the trial. The right to be present, however,...
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Gilreath v. State
... ... State, 212 Ga. 73, 74, 90 S.E.2d 557 (1955). Defendant cites numerous cases wherein the defendant's absence required reversal, but all involve either the jury viewing evidence outside the courthouse, Chance v. State, 156 Ga. 428(1), 119 S.E. 303 (1923); rereading evidence, Wade v. State, 12 Ga. 25 (1852); argument of counsel, Wilson v. State, supra, 212 Ga. 73, 90 S.E.2d 557 (1955); recharging the jury, Wilson v. State, 87 Ga. 583, 13 S.E. 566 (1891); Bonner v. State, 67 Ga. 510 (1881); Martin v ... ...
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... ... The judge stated that the warden would point out changes in the prison instituted since the riot. 21 ... On appeal, defendant contends the jury view is a stage of the proceedings under Georgia law and that under Chance v. State, 156 Ga. 428, 119 S.E. 303 (1923), he must be afforded the opportunity to be present in the absence of waiver ... Pretermitting the questions of waiver, and forced or induced or harmless error, we find the trial court action proper ... A jury view of a ... ...
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