Davidson v. State

• Decision Date: 09 June 1913
• Citation: 158 S.W. 1103,108 Ark. 191
• Parties: DAVIDSON v. STATE
• Court: Arkansas Supreme Court

158 S.W. 1103

108 Ark. 191

DAVIDSON v. STATE

Supreme Court of Arkansas

June 9, 1913

Appeal from Boone Circuit Court; George W. Reed, Judge; affirmed.

Judgment affirmed.

E. G Mitchell and Guy L. Trimble, for appellant; W. P. Smith, of counsel.

1. The right of a defendant to be present in a felony case is both statutory and constitutional. Kirby's Dig., § 2339; Const., art. 2, § 10; 5 Ark. 431; 10 Id. 325; 58 Id. 239; 30 Id. 328; 62 Id 537; 44 Id. 331; 100 Id. 334; 146 U.S. 374; 4 Sup. Court Reporter, 204; 28 Am. Dec. 629, and notes; 110 U.S. 524; 40 Ala. 325; 49 Cal. 41; 8 Col. 457; 37 Fla. 162; 55 Ga. 521; 14 Bush, 769; 30 La. 367; 53 Miss. 363; 84 N.C 412; 4 Ore. 198; 99 Va. 816; 85 Wis. 400; 90 Mo. 37; 20 S.W. 758. All the courts hold that receiving the verdict in defendant's absence is error.

2. The waiver of counsel could not bind defendant. The right to be present can not be waived. 28 Am. Dec. 630, and notes; 12 Fla. 562; 97 N.C. 404; 24 Ark. 634; 20 L. R. A. (N. S.), 510; 110 U.S. 524; 146 Id. 374; 4 S. C. Rep. 204, and cases supra.

3. The receiving of a void verdict acts as an acquittal. Cases supra; 53 Miss. 363; 83 Ind. 331; 19 Kan. 445; 60 Minn. 90; 29 Tex.App. 62; 6 S.W. 646; 43 Ark. 271; 48 Id. 38; 31 Am. Rep. 31; 19 Id. 719; 24 Ark. 629.

4. The admission of the testimony of Alex Davidson as to what he swore before the coroner's jury and the grand jury and the remarks of counsel thereon were erroneous and prejudicial. 72 Ark. 584; 100 Id. 344; 51 Id. 115; 93 Id. 324; 52 Am. St. Rep. 717.

5. It was error not to sustain the motion to elect on which count the State would prosecute. 69 Ark. 184; 60 Id. 554; 48 Id. 94; Kirby's Dig., § 2230.

6. The instructions are erroneous (136 Mo. 41-45), especially as to reasonable doubt and as to crimes committed by means of poison, lying in wait, burglary, arson, robbery, etc. Defendant was only charged with murder. 69 Ark. 184.

Wm. L. Moose, Attorney General, and John P. Streepey, Assistant, for appellee; Gus Seawel, of counsel.

1. The evidence sustains the conviction. The motive was shown.

2. Appellant was present when the verdict was rendered as the record recites. While the bill of exceptions seems to indicate his absence and that he had by counsel waived his right to be present, the record is supreme and must prevail. 97 Ala. 49, 51; 165 Id. 18; 3 Col. 396; 3 Cyc. 153; 42 So. 380; 107 S.W. 420, 135 Id. 28; 17 Ark. 532; 24 Id. 499, 505; 23 Id. 131; 22 Id. 365; 72 Id. 320; 87 Id. 50; 10 L. R. A. 933-6; 144 S.W. 208.

3. The right to be present when the verdict is rendered is not a constitutional right, and may be waived. Const., art. 2, § 10; 43 Ark. 391; 46 Id. 141, 147; 20 L. R. A. (N. S.), 511.

4. He was not prejudiced by the verdict being rendered in his absence. 104 Ark. 629; 50 Ark. 492, 499.

5. There was no error in admitting the testimony of Alex Davidson as to his former testimony. 76 Ark. 276. But if error, no objection was made. 92 Id. 237, 239; 80 Id. 364.

6. The remarks of the court were neither erroneous nor prejudicial. 2 Ark. 512, 574; 83 Id. 379.

7. The appellant was only charged with one crime in different counts. 50 Ark. 305, 313; 71 Id. 574.

8. There is no error in the instructions. They are well sustained. 105 Ark. 37; 106 Ark. 362; Kirby's Dig., § 1766; 29 Ark. 248, 268; 37 Id. 238, 254.

MCCULLOCH, C. J. WOOD and SMITH, JJ., dissent.

OPINION

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 eighteen years of age, who lived in Boone County, Arkansas, 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 offense 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, 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, Arkansas. 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 (art. 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 can not 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...