Frey v. Calhoun Circuit Judge

• Decision Date: 19 November 1895
• Citation: 107 Mich. 130,64 N.W. 1047
• Court: Michigan Supreme Court
• Parties: FREY v. CALHOUN CIRCUIT JUDGE.

64 N.W. 1047

107 Mich. 130

FREY v. CALHOUN CIRCUIT JUDGE.

Supreme Court of Michigan

November 19, 1895

Application of Oren J. Frey for mandamus to the Calhoun circuit judge. Denied.

Hulbert & Mechem, for relator.

O Scott Clark, for respondent.

McGRATH, C.J.

Relator was on trial under How. Ann. St. � 9093. After the jury had retired, the court adjourned until the next morning at 8 o'clock. When the court reconvened, the jury reported that they had agreed upon a verdict. They were admitted rendered a verdict of guilty, and were discharged. Within a few minutes, the respondent, who was out on bail, came into court, and the fact of his absence at the time of the rendition of the verdict was then made known to the court. The jury had separated, but, after not less than half an hour and not more than three-quarters of an hour had elapsed, the jury were called together, and again announced their verdict in the presence of the respondent, and were polled by the clerk. Counsel for the prisoner afterwards moved the court for respondent's discharge, and this is an application for a mandamus to compel the court to make such an order. Relator's contention is that he was on trial for a felony; that the statute (How. Ann. St. � 9568) provides that no person indicted for a felony shall be tried unless personally present during the trial; that the trial includes the receipt and record of the verdict; that the first verdict was rendered in his absence; that the second verdict was rendered after the jury had separated; and that he has been once in jeopardy, and is therefore entitled to his discharge. The general rule is that a trial for a felony cannot be had without the personal presence of the accused. We have a statute which recognizes and embodies this rule. How. Ann St. � 9568. It is also well settled that the trial is not concluded until the verdict is received and recorded. There are cases which hold that a verdict rendered in the absence of the prisoner, whether he be in custody or out on bail, is void. State v. Hurlbut, 1 Root, 90; Clark v State, 4 Humph. 254; Sneed v. State, 5 Ark 431. Few cases will be found which go to this extent, and in nearly all of the cases where a verdict rendered in the absence of the accused has been held erroneous the respondent has been in custody, and has therefore been prevented from attending. When, however, the absence of the prisoner is not an enforced absence, but is voluntary, as when he is out on bail, and has been present pending the trial, but voluntarily leaves the court room pending the deliberations of the jury, or neglects to appear at the adjourned hour of the court, the clear weight of authority favors the rule that a verdict rendered under such circumstances is valid and binding. In Arkansas a statute enacted since the decision of Sneed v. State, supra, Brown v. State, 24 Ark. 620, and Osborn v. State, Id. 629, provides that, if defendant escapes from custody pending the trial, or, if on bail, he shall absent himself, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney. The constitutionality of this statute was upheld in Gore v. State (Ark.) 12 S.W. 564. In Hill v. State, 17 Wis. 697, it was held that the burden was upon the prisoner to show that he was deprived of the right to be present. In Wilson v. State, 2 Ohio St. 319, held that when defendant is on bail it is not error to receive a verdict in his voluntary absence. In Fight v. State, 7 Ohio, 181, respondent, being on bail, had absconded during the trial, and it was held proper to proceed with the trial. In Rose v. State, 20 Ohio, 31, the prisoner was in custody, and it was held that a verdict received in his absence should have been set aside. In Sahlinger v. People, 102 Ill. 241, held that, where a prisoner, pending the trial, voluntarily abandons the court room, he will be regarded as having waived a right which is guarantied to him, and the court may proceed in his absence. In Price v. State, 36 Miss. 531, it was held that, where defendant voluntarily absents himself, he cannot complain. In Finch v. State, 53 Miss. 363...