Hagood v. Commonwealth

• Citation: 162 S.E. 601
• Court: Virginia Supreme Court
• Decision Date: 14 January 1932
• Parties: HAGOOD. v. COMMONWEALTH.

162 S.E. 601

HAGOOD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1932.

Dissenting opinions.

For majority opinion, see 162 S. E. 10.

HUDGINS, J. (dissenting in part).

The accused's assignment of error No. 7 involves the application of that part of the Code, § 4894, reading: "A person tried for felony shall be personally present during the trial." The statute, quoted in this mandatory form, is merely declaratory of a common-law principle. Judge Kelly, in Noell v. Commonwealth, 135 Va. 600, 115 S. E. 679, 681, 30 A. L. R. 1345, said:

"That principle did not spring solely from a regard for the welfare of the accused. The public has an interest in every case involving the life or liberty of a citizen, and both in England and in this country it has long been recognized as a settled rule of the common law, based as well upon public policy as upon the interest of the accused, that his continuous presence, from arraignment to sentence, is an essential part of the process of law provide for his trial and without which the courts have no jurisdiction to pronounce judgment upon him."

A principle so imbedded in our system of jurisprudence and one that has remained in our statute without change in this particular for so long should not be curtailed or frittered away by judicial construction. The right with which the statute deals, not being for the sole benefit of the accused, is one which he cannot waive. This has been the uniform ruling of this court since its organization. The following are a few of the cases so holding: Sperry's Case, 9 Leigh (36 Va.) 623, 33 Am. Dec. 261; Hooker's Case, 13 Grat. (54 Va.) 763; Jackson's Case, 19 Grat. (60 Va.) 664; Lawrence's Case, 30 Grat. (71 Va.) 845; Bond's Case, 83 Va. 581, 3 S. E. 149; Spurgeon's Case, 86 Va. 652, 10 S. E. 979; Shelton's Case, 89 Va. 453, 16 S. E. 355; Snodgrass' Case, 89 Va. 687, 17 S. E. 238; Gilligan's Case, 99 Va. 816, 37 S. E. 962; Jones v. Com., 100 Va. 842, 41 S. E. 951; Kibler v. Com., 94 Va. 804, 26 S. E. 858; Bowen v. Com., 132 Va. 598, 111 S. E. 131; Fetters v. Com., 135 Va. 501, 115 S. E. 692.

Justice Harlan, in the case of Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 204, 28 L. Ed. 262, states the doctrine thus:

"That which the law makes essential in proceedings involving the deprivation 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. * * * If he be deprived of his life or liberty without being so present, such deprivation would be without that clue process of law required by the constitution."

The fact that the accused is not able to waive the right to be present during the trial of a felony case eliminates the suggestion of invited error in the contrary opinion.

The Attorney General in his brief relies on the case of Palmer v. Com., 143 Va. 592, 130 S. E. 398, 402, and the contrary opinion refers to this case, but evidently recognizes that it is not an authority for the position taken, because no stress is laid thereon. In that case this court held that the argument on instructions, and the consideration of instructions by the judge, were not a part of the trial, but it expressly held that the ruling of the court on the instructions either in granting, or refusing, them was a part of the official action of the court and a part of the trial. Judge Prentis in that case had this to say:

"The considering of proposed instructions by a court, if done in the absence of both the jury and the accused (and it should generally be done in the absence of the jury), cannot affect the prisoner's rights in any true sense. This is neither official nor unofficial action, but merely prudent preparation therefor. His rights can only be affected after the trial judge has determined the legal questions so raised, and when he communicates the instructions to the jury, or refuses to grant any instructions which are prayed for. This is official action, and, when any official action is taken in the trial which affects his rights, the accused must be present."

The contrary opinion does not expressly hold, but strongly suggests, that the accused is barred by estoppel from urging this court to consider the fact that he was not present when the instructions were refused. As I have pointed out above, that which the law makes essential in proceedings involving life or liberty cannot be dispensed with, or affected by the conduct of the accused. The presence of the accused during the trial from arraignment to final judgment is jurisdictional, and cannot be waived. See authorities cited and others collected in 3 Michie's Dig. p. 260.

The opinon finally admits that the refused instructions are a part of the record, and, without a particle of evidence on the subject, states that they could have become a part of the record only in one of two ways: (1) They could have been given to the clerk by the judge out of court; or (2) they could have been given to him by the judge in court. "If we are to indulge in the first presumption then we are to presume error and this we can never do." Then the opinion repeats the same error that Judge Richardson made in the case of Dove v. Com., 82 Va. 301, by applying a principle only applicable to a civil case on review in this court to a felony case.

Judge Prentis, in White v. Reed, 146 Va. 246, 135 S. E. 809, quotes the language used, applies it in a civil case, and cites numerous civil cases in support of the doctrine, but does not refer to a single criminal case.

Judge Keith, in the Gilligan Case, 99 Va. 816, 37 S. E. 962, 963, emphasizes the fact that this doctrine cannot be applied to criminal cases in the following language:

"The contention of the prisoner is, first, that a verdict upon an indictment for a felony must be rendered by the jury in open court in the presence of the prisoner, and received and recorded by the court; that these essential facts must appear from an inspection of the record, and no intendment will supply their omission, or the omission of any one of them; that the maxim, 'Omnia praesumuntur rite et solemniter esse acta, ' has no application to records made in trials for felony; and that courts cannot resort to any presumption to supply the omission from the record of that which should appear by the record.

"To all this we give an unqualified assent. * * *

"But, while no intendment can supply an omission from the record of that which is material, all proper inferences may and must be drawn from that which does appear; and, while the presumption that all things have been properly done in a court of record cannot be resorted to in a criminal case, it is equally true that there can be no presumption of error."

Judge Phlegar, in a dissenting opinion concurred in by Judge Buchanan, states the principle thus: "The presumption that a court of general jurisdiction acts rightly cannot supply the substantive or essential parts of the record in a criminal case."

Thus we see that both in the majority and minority opinions this court expressly stated that the principle does not apply in a felony case. The majority opinion held that proper inferences might be drawn from the entire record, but there was no presumption of whether or not the court had acted rightly on a jurisdictional matter. In the same case Judge Keith used this significant language: "We are aware that courts rigidly enforce the prisoner's right to be present at every stage of the trial from his arraignment to the sentence, when anything is to be done which can affect his interest. We are aware that no court has been more zealous and exacting in enforcing this privilege, and in requiring that...