Frost v. State

Decision Date28 April 1932
Docket Number6 Div. 52.
Citation142 So. 427,225 Ala. 232
PartiesFROST v. STATE.
CourtAlabama Supreme Court

Rehearing Denied June 16, 1932.

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Vertus Frost was convicted of murder in the first degree, and he appeals.


BROWN J., dissenting.

Norman Gunn, of Jasper, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst Atty. Gen., and Pennington & Tweedy, of Jasper, for the State.


The appellant was indicted, tried, and convicted of murder in the first degree for killing Sam Waldrop, and his punishment was fixed by the jury at death.

The indictment was returned against the defendant at the spring term, 1931, of the circuit court of Walker county. The evidence tended to show that the defendant shot and killed the deceased on or about the 10th day of February, 1931, and after he had killed him, removed from his body, and carried away, certain articles of his clothing, including his shoes and watch. The overcoat, worn by the deceased at the time he was killed, was buried by the defendant near the scene of the killing. The defendant was wearing the shoes of deceased at the time he was arrested. It also appears that the defendant, after removing the coat and breeches from the body of deceased, carried these articles to a nearby shop, and had the same cleaned and pressed. The evidence also tended to show that the defendant gave the watch of deceased to a woman friend shortly after the alleged murder. When found, the body of deceased was buried, about ten inches deep in a "muck" dump, along a certain road near Corona, in Walker county. Defendant at first denied all knowledge of the killing, but later, after he was arrested, made a confession, admitting the killing, but claiming he was drunk when he committed the crime. He claimed on the trial that he was intoxicated to such an extent that he could not, and did not, remember burying the body of the deceased, or that he had removed and carried away any of the clothing worn by deceased at the time of his death.

We will refer to other facts in evidence in the case, in discussing some of the exceptions reserved by defendant on the trial.

The record proper discloses that the arraignment, the drawing of a special venire for the trial, and the order setting a day for the trial of the defendant, and the order for service of the venire and of a copy of the indictment upon him by the sheriff, were and are in all respects regular. The record proper also shows the presence of the defendant, attended by his attorney, in open court at the time the above orders of the court were made. The judgment entry shows that the arraignment was had on the 3d day of March, 1931, and the cause was then set for trial on March 16, 1931. On March 16, 1931, the day set for trial of the defendant, the minute entry recites: "March 16, 1931. The jury having been selected and empanelled and sworn according to law, to try the case and the indictment against defendant having been read and stated to the jury, the defendant pleads thereto not guilty, and with permission of the court pleads further 'no guilty by reason of insanity.' Upon this plea issue is joined by the State through its solicitor." On March 17, 1931, the following minute entry appears in the case: "March 17, 1931, Thereupon came a jury of good and lawful men, to-wit, Thos. J. Payne, and eleven others who having been duly sworn, empanelled and charged according to law on their oaths do say, 'We the jury find the defendant guilty of murder in the first degree as charged in the indictment and fix his punishment at death. Thos. J. Payne, Foreman."' On March 23, 1931, the following other minute entry appears: "March 23rd, 1931. Accordingly it is considered by the court, and it is the order and judgment of the court that the defendant is guilty of murder in the first degree, as charged in the indictment, and his punishment is fixed at death." Immediately following the above there appears the following sentence of the court: "And now on the same date, viz: the 23rd day of March, 1931, the defendant Vertus Frost, being in open court, and being asked by the court if he has anything to say why sentence of the law should not now be pronounced upon him, says nothing. It is, therefore, the order and judgment of the court, and it is the judgment and sentence of the law, that on Friday, May 22nd, 1931, inside the walls of Kilby Prison, at Montgomery, in this State, and by the means and agencies provided by law in such cases, the defendant, Vertus Frost, be put to death by electrocution."

While the question is not raised in brief of counsel for the defendant, yet we deem it our duty to consider and pass upon the sufficiency of the foregoing minute entries to show the personal presence of the defendant, when each of the successive steps were taken, and orders made, in his case. Does the record show the presence of the defendant in open court when the jury was selected on March 16, 1931, to try his case? If so, does it affirmatively show his presence in open court, when the verdict was returned by the jury? At the time the court adjudged the guilt of this defendant on March 23, 1931, does this record affirmatively show the presence of the defendant in open court? It is our duty to consider all questions apparent on the record or reserved by bill of exceptions, though not assigned, and if error appears, prejudicial to the defendant, it is our duty to reverse the case.

In the case of Wells v. State, 147 Ala. 140, 41 So. 630, 631 (which was an indictment for misdemeanor) this court held: "In all criminal cases the verdict of the jury must be rendered in open court and in the presence of the accused. In cases of felony the prisoner must be personally present when the jury return their verdict, and to support a conviction the record must affirmatively declare his presence."

In Cook v. State, 60 Ala. 39, 31 Am. Rep. 31, this court held: "The offense with which defendant was charged by the indictment in this cause is a felony according to section 4095 (3541) of the Code of 1876, because punishable by imprisonment in the penitentiary. In such a case the defendant is entitled, as a right, to be present at the rendering of the verdict; and if rendered against him during his absence it is void." And, in the same case, it is held that it is not within the authority of the prisoner's counsel to waive for him his right to be present when the verdict was delivered. Waller v. State, 40 Ala. 325; Young v. State,

39 Ala. 357; Sperry v. Commonwealth, 9 Leigh (36 Va.) 623, 33 Am. Dec. 261.

In the case of Eliza (a freed woman) v. State, 39 Ala. 693, it was said: "In looking into the record in this case, we find a fatal error, which must reverse the judgment below. In the judgment-entry, it does not sufficiently appear that the prisoner was personally present in court, when she was tried and sentenced. The entry recites that 'this day came S. A. M. Wood, solicitor, and the defendant,' etc.; and it also recites, 'that she be taken hence to the jail of Tuskaloosa county,' etc. These recitals are not sufficient to make it affirmatively appear that the prisoner was present in person, both during the trial, and at the time of the sentence. The rule is well settled, in England, and in this state, and is inflexible, that a prisoner, accused of felony, must be arraigned in person, and must plead in person; and in all the subsequent proceedings, it is required that he shall appear in person. 2 Leading Crim. Cases, and authorities there cited." Young v. State, 39 Ala. 357. In Young v. State, supra, Justice Stone said: "Two well-defined principles of law render it necessary that the judgment pronounced by the circuit court in this case be reversed: first, that judgment cannot be given against any man, in his absence, for a corporal punishment; and, second, that the record must affirmatively show the prisoner's presence. " (Italics supplied.) Continuing, this great judge in that case said: "Possibly, it is enough if the record show by fair inference that the prisoner was present when the sentence was pronounced." State v. Craton, 6 Ired. (28 N. C.) 164; Sperry v. Commonwealth, 9 Leigh (36 Va.) 623; 33 Am. Dec. 261; 2 Leading Criminal Cases 449, and note.

In 16 Corpus Juris § 2066, page 813, the above principle is thus broadly stated: "By express constitutional or statutory provisions in many states, and at common law in the absence of a statute, it is essential to a valid trial and conviction on a charge of a felony that the defendant shall be personally present, not only when he is arraigned, but at every subsequent stage of the trial, unless he may and does waive his right." Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Lewis v. U. S., 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011; Cook v. State, 60 Ala. 39, 31 Am. Rep. 31 (and other cases above cited); Davidson v. State, 108 Ark. 191, 158 S.W. 1103, Ann. Cas. 1915B, 436; Bearden v. State, 44 Ark. 331; People v. Kohler, 5 Cal. 72; State v. Hurlbut, 1 Root (Conn.) 90; Fails v. State, 60 Fla. 8, 52 So. 612, Ann. Cas. 1912B, 1146; Nolan v. State, 55 Ga. 521, 21 Am. Rep. 281; Miller v. State, 13 Ga.App. 440, 79 S.E. 232; People v. Turney, 273 Ill. 546, 113 N.E. 105; Southerland v. State, 176 Ind. 493, 96 N.E. 583; State v. Moran, 46 Kan. 318, 26 P. 754; Allen v. Com., 86 Ky. 642, 6 S.W. 645; State v. Thomas, 128 La. 813, 55 So. 415; Rolls v. State, 52 Miss. 391; People v. Sprague, 217 N.Y. 373, 111 N.E. 1077; State v. Dry, 152 N.C. 813, 67 S.E. 1000; Vowell v. State, 132 Tenn. 349, 178 S.W. 768; Brown v. State, 38 Tex. 482; Dougherty v. Com., 69 Pa. 286.

In 16 Corpus Juris, at page 814, it is further stated, however that "as a...

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