Hunt v. City of Tupelo

• Decision Date: 20 November 1916
• Citation: 72 So. 895,112 Miss. 178
• Court: Mississippi Supreme Court
• Parties: HUNT v. CITY OF TUPELO

72 So. 895

112 Miss. 178

HUNT v. CITY OF TUPELO

Supreme Court of Mississippi

November 20, 1916

October 1916

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Annie Hunt was convicted of keeping malt liquors, beer, etc., and for unlawful purposes and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and case remanded.

Boggan & Leak and W. A. Blair, for appellant.

There is a very important question involved in this case, viz: that of returning the verdict to the clerk of the court, the defendant and her counsel, after court had adjourned for the noon hour, and until one thirty o'clock that afternoon without the consent or approval of defendant or her counsel and no notice was given her that the jury was ready to render a verdict in her case. It seems that there is, in the special bill of exceptions and motion for a new trial, a mistake as to the time that adjournment was taken, as they both state that it was in the evening, at the close of the day's session, but this is an error made by counsel who represented this appellant and also Metie Henry Borum, who in preparing the motions, got them reversed, and this case was the one decided at the noon hour, or during the adjournment between the morning and the afternoon session of court, and the stenographer's notes show that the case was tried in the forenoon.

This defendant has the right, guaranteed to her by section 26 of the Constitution of Mississippi, to be present, and this applies as well to misdemeanors as to felonies. We realize that it is the law that where the defendant voluntarily absents herself from the trial, it may proceed without her being present, and in misdemeanor cases she can be tried in her absence, where she has notice of the time and place fixed for the trial and fails to appear, but when she does appear and defends the charge against her, she is entitled to all the protection the law affords her, and it cannot be said that she was voluntarily absent, after court had adjourned for the day, and all parties had been discharged and announcement to that effect had been made, and no notice was given her that her presence was needed or expected.

There are a number of cases that hold that when a defendant is physically unable to be present at a trial, that she does not voluntarily absent herself, and if tried under such conditions she is deprived of her constitutional right.

It is held in James v. State, 55 Miss. 57, that a refusal to poll the jury on request in either a civil or criminal case is reversible error. It occurs to us that a failure to allow the defendant, or her counsel, to be present when the verdict is returned, is a more serious error than to refuse to poll the jury, as they are not present and could not ask for it to be polled, or protect defendant's rights with reference to any other things that might occur at the time.

In the case of Garmon v. State, it was held as error to exclude Joe Garmon who was being tried jointly with others, from the court room on account of the fact that he was a witness in the case. This was a misdemeanor, and the court said that he had a right to be present and advise and assist his counsel.

We also call the court's attention to the cases of French v. State, 63 Miss. 386; Ryan v. Cranch, 66 Ala. 636; Chester v. Bower, 56 Cal. 46; LaRue v. Russel, 26 Ind. 386; Crow v. Peeters, 63 Mo. 429; Snider v. Haas, 14 Ore. 174; Garmon v. State, 66 Miss. 196.

In the case of Corbin v. State, Justice ANDERSON speaking, says "Furthermore, the appellant had the constitutional right to be present when tried, such right being guaranteed by the twenty-sixth section of the Constitution, which...