Davidson v. State
| Citation | 158 S.W. 1103 |
| Parties | DAVIDSON v. STATE. |
| Decision Date | 09 June 1913 |
| Court | Supreme Court of Arkansas |
v.
STATE.
Page 1104
Appeal from Circuit Court, Boone County; Geo. W. Reed, Judge.
Odus Davidson was convicted of murder in the first degree, and he appeals. Affirmed.
E. G. Mitchell and Guy L. Trimble, both of Harrison, for appellant. W. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.
McCULLOCH, C. J.
The defendant, Odus Davidson, was convicted of the crime of murder in the first degree. He is accused in the indictment of murdering Ella Barham, a young woman about 18 years of age, who lived in Boone county, Ark., in the same neighborhood where defendant resided and where he had been reared. There are several counts in the indictment, each charging the defendant with the crime of murder in the first degree, committed in different modes by killing Ella Barham. Each count of the indictment is legally sufficient as a charge of the crime of murder in the first degree, and the indictment concludes with the following clause, namely: "It being intended throughout each count in this indictment to charge the offenses herein set out as having been committed in different manners and by different means, but all referring to one and the same transaction."
The defendant moved the court to require the prosecuting attorney to elect upon which count of the indictment he would proceed. The court overruled the motion, and that ruling is assigned as error. The indictment presents a clear instance of charging the same offense committed in different modes. It does not charge the commission of more than one offense, and it is, therefore, not open to the objection that different offenses are named therein. Corley v. State, 50 Ark. 305, 7 S. W. 255.
The next assignment of error is that the trial was vitiated on account of the verdict of the jury being received by the court in the absence of the defendant. The record entry of the trial and judgment recites the presence of defendant in person and by his attorneys;
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but the circuit judge has certified in the bill of exceptions that the defendant was not present in person when the verdict was returned and that his attorneys were present and entered into a written stipulation for him consenting that the verdict might be returned in his absence. The recital on this subject in the bill of exceptions reads as follows: "Two or three hours after the jury had retired in the charge of the officers under the instructions of the court to consider their verdict, and on the same day, there was a consultation between the attorneys for the defendant and the court in the absence of both the defendant and the prosecuting attorney, and upon the request of the attorneys for the defendant, and upon the specific understanding that the agreement be reduced to writing, waiving the presence of the defendant, if a verdict was returned in his absence, the court and the attorneys for the defendant believing there was danger of a mob, and such action being in the interest of the defendant, the court ordered the sheriff, without the agreement of the prosecuting attorney, and over his objections, to convey the defendant to the jail at Berryville, Carroll county, Ark. The defendant was present at all times, either in person or by attorney. Such agreement and waiver was prepared by defendant's counsel, and signed by the said E. G. Mitchell and B. B. Hudgins and other counsel in the case, which written waiver was in words as follows: [Here follows copy of the written stipulation]."
Where there is a conflict between the recitals of the record entry proper and those in the bill of exceptions, the former must prevail; but inasmuch as the circuit judge has certified the facts in the bill of exceptions, and defendant's counsel have asked for a postponement of the case here until the circuit court convenes again and an opportunity can be given for an amendment of the record, we would not dispose of the question adversely to defendant's contention without giving him an opportunity to have the record amended, if an amendment in accordance with his contention would bring about a different result in the disposition of the case. We will, therefore, treat the record as amended so as to show his absence by consent as recited in the bill of exceptions, and will test his right to a reversal of the judgment on that state of the record.
The Constitution (article 2, § 10) provides that: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury; * * * and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be heard by himself and his counsel."
A section of the Code of Criminal Procedure reads as follows: "If the indictment be for a felony, the defendant must be present during the trial. If he escapes from custody after the trial has commenced, or, if on bail, shall absent himself during the trial, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney, but judgment shall not be rendered until the presence of the defendant is obtained." Kirby's Digest, § 2339.
It is insisted on behalf of the state that the constitutional provision quoted above does not guarantee the right of an accused person to be present when the verdict is returned, and that the judgment should not be reversed on account of the absence of the defendant when the verdict was rendered unless it appears that his absence operated to his prejudice. We do not think, however, that that contention is sustained by the decisions of this court.
The language of the Constitution, "to be heard by himself and his counsel," is a guarantee that an accused shall have the privilege of being present in person and by counsel whenever any substantive step is taken by the court in his case. Bearden v. State, 44 Ark. 331. Chief Justice Cockrill, speaking for the court in the case just cited, said: "Under this rule it is not necessary that the accused shall show that he was actually prejudiced by the proceeding had in his absence. It is sufficient to annul the verdict against him, if it appears that he may have lost an advantage or been prejudiced by reason of a step taken in his absence. The reason of the rule is to secure to the accused full facilities for defense. However, while he cannot be deprived of his right to be present at all stages of his trial, it does not follow that he must be. The statute provides that certain proceedings may be had in the absence of a defendant who absconds, or is on bail and absents himself. Where, also, no prejudice could by any possibility result from the action of the court, there is no reason for requiring the presence of the defendant." The Constitution does not provide that the defendant must be present, but that he may be present. It is a privilege which is conferred, and does not relate to the power of the court to conduct the successive steps in the trial.
The statute referred to reads that the defendant "must be present during the trial." The statutory provision is, however, not for the benefit of the accused, but for the state. Martin v. State, 40 Ark. 364. 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
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authority, in felony cases other than capital, the accused may waive his presence. 12 Cyc. 527.
In a recent decision of the Supreme Court of Mississippi, the court held that, where the defendant was charged with a capital offense (murder in the first degree), but was convicted of the lower offense of manslaughter, the trial was vitiated by the fact that the accused was absent. Sherrod v. State, 93 Miss. 774, 47 South. 554, 20 L. R. A. (N. S.) 509. The recital of facts in that case shows that the defendant was on bond and voluntarily absented himself at the time it was announced that the verdict of the jury would be received; but the court held that he could not waive his presence when that important step in his trial was taken.
The Supreme Court of the United States also held that a person accused of a capital offense cannot waive his presence at a substantive step in the proceeding. Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262. The grounds of the decision were stated for the court by Mr. Justice Harlan as follows: "We are of opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the grounds that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relations which the accused holds to the public as of the end of human punishment. * * * The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivations of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Com. 11. Such being the relation...
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