Com. v. McCarthy

• Decision Date: 21 May 1895
• Citation: 163 Mass. 458,40 N.E. 766
• Parties: COMMONWEALTH v. McCARTHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 458

40 N.E. 766

COMMONWEALTH v. McCARTHY.

Supreme Judicial Court of Massachusetts, Norfolk.

May 21, 1895

COUNSEL

Robert O. Harris, Dist. Atty., for the Commonwealth.

T.E Grover and Peter Daly, for defendant.

OPINION

KNOWLTON, J.

The defendant was indicted and tried for larceny in a building. He was on bail, and it must be assumed that he was present during the trial all the time until after the jury had retired to consider the case, when he voluntarily went away and remained absent until after they had returned with their verdict. He was then defaulted, and a verdict of guilty was received and recorded. He afterwards moved to set aside the verdict, on the ground that the court could not properly receive it in his absence. This motion presents the only question in the case.

It is a general rule, both in England and in this country, that a trial for a felony cannot be had without the personal presence of the accused. I Co.Inst. 227b; 3 Co.Inst. 110; I Chit.Cr.Law, 635, 636; Rex v. Ladsingham, T.Raym. 193, 2 Keb. 687, and Vent. 97; 2 Hale, P.C. 298-300; 4 Bl.Comm. 375; State v. Hurlbut, 1 Root, 90; People v. Perkins, 1 Wend. 91; Sargent v State, 11 Ohio, 472; Jones v. State, 26 Ohio St. 208; Prine v. Com., 18 Pa.St. 103; State v. France, 1 Overt. 436; Harriman v. State, 2 G. Greene, 271; Cole v. State, 10 Ark. 318; State v. Hughes, 2 Ala. 102; State v. Battle, 7 Ala. 259; Kelly v. State, 3 Smedes & M. 518; State v. Cross, 27 Mo. 332; People v. Kohler, 5 Cal. 72. The trial is not concluded until the verdict is received and recorded. Maurer v. People, 43 N.Y. 1, and cases above cited. In this commonwealth we have a statute which embodies the same general rule. Pub.St. c. 214, § 10. See Com. v. Costello, 121 Mass. 371. Under this statute, as well as at the common law, it may well be held that, when a defendant is in custody under an indictment for a felony, the verdict cannot properly be taken in his case without his personal presence, even if he has been in attendance in all previous stages of the trial, and that, whether he is in custody or on bail, the trial cannot properly be begun in his absence. But whether a defendant who is on bail, and who has been present during his trial until the case has been given to the jury, can nullify the whole proceedings by absenting himself until it becomes necessary to discharge the jury, is a very different question. We have seen no well-considered case that decides this question in the affirmative. In most of the reported cases the defendant was in custody, and the failure of the authorities to have him present when the verdict was taken deprived him of a right; in others, when the defendant was on bail, there was an attempt to convict him without his being present at all; and in two or three others the general rule was applied, without discussion, to the case of a defendant on bail who had been present during a part of the trial, and was absent when the verdict was rendered. But it has been repeatedly held, upon careful consideration, that while it is a right of the defendant indicted for a felony to be present when the verdict is rendered, as well as during the earlier parts of the trial, and while it is irregular and improper to begin the trial in such a case without the presence of the accused, yet if he is on bail, and is present at the commencement of the trial, and afterwards voluntarily departs without leave, and is absent when the verdict is returned, he may be defaulted, and a verdict which will be binding upon him may be taken in his absence. Fight v. State, 7 Ohio. pt. 1, 180; Wilson v. State, 2 Ohio St. 319; Price v. State, 36 Miss. 531; Hill v. State, 17 Wis. 675; State v. Wamier, 16 Ind. 357. See, also, Lynch v. Com., 88 Pa.St. 189. Such a case is treated as an exception to the general rule, and as a waiver by the defendant of his right to be present.

The principal object of the general rule above referred to is that the defendant may have an opportunity to exercise his right of challenge, and may avail himself of other rights which cannot be so well exercised, if exercised at all, by his counsel in his absence. Another object is that he may be present at the end of the trial to receive the sentence of the court if found guilty; but under a system like ours where the prisoner is allowed to give bail and to go at large during the hours that the court is not in session until the...