Kokas v. Commonwealth

• Decision Date: 28 February 1922
• Citation: 194 Ky. 44,237 S.W. 1090
• Parties: KOKAS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

237 S.W. 1090

194 Ky. 44

KOKAS v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 28, 1922

Appeal from Circuit Court; Fayette County.

Louis Kokas was convicted of rape, and he appeals. Reversed for a new trial.

Miller & Miller and Maury Kemper, all of Lexington, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

The appellant, Louis Kokas following his indictment for the crime of rape, alleged to have been committed upon the person of Nannie May Clem, a female under 12 years of age, was tried in the court below, by verdict of the jury found guilty of the crime charged, and given, by way of punishment, the death penalty to be inflicted by hanging. He was refused a new trial and has appealed from the judgment entered upon the verdict.

One of the grounds urged by the appellant for a reversal of the judgment is that error was committed by the trial court in permitting its official stenographer, after the submission of the case to the jury and while they were deliberating upon their verdict, to enter the jury room and read to the jury from his stenographic notes of the evidence as made during the trial, portions thereof as requested by the jury. It appears from the affidavit of the official stenographer which was filed in the court below on the appellant's motion for a new trial, that he was not sworn as a witness before or after entering the jury room; that only he and the members of the jury were present while he was in the jury room, and that he remained with the jury in the room more than an hour and perhaps as long as an hour and a half. It also appears from his affidavit that he read to the jury disconnectedly only such portions of the evidence as they asked to have read, which was exclusively evidence in behalf of the commonwealth, and that during the reading from his notes there was a lot of talking by the members of the jury and some by affiant, who was able to recall but little that was said.

It appears from the record that in sending the official stenographer with his notes of the evidence to the jury room the court acted upon a request from the jury, made through the sheriff having them in charge, that it be done, but that both at the time the request was made and granted, the appellant was not in court, but in a cell of the county jail; and it is admitted that he did not know of or consent to the sending of the official stenographer to the jury room or to the reading of his notes of the evidence to the jury. It appears, however, that the attorney who acted as appellant's counsel on the trial, but later retired from the case, was then present and stated that he did not object to the court's sending the official stenographer to the jury room for the purpose of reading his notes of the evidence to the jury; but this was said in the appellant's absence and without his knowledge.

The rule of common law, that the trial of one charged with a felony must be had in his presence, was regarded by the framers of the several Constitutions of this state as of such supreme importance that it was set forth in meaning, though not in the exact language of the common law, in each of them. In our present Constitution it is expressed in section 11, Bill of Rights, which, among other things, provides:

"In all criminal prosecutions the accused has the right to be heard by himself and counsel; * * * to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor. * * *"

The necessity of the presence of the accused during the trial of a felony is also made imperative by the Criminal Code of Practice, § 183, which provides:

"If the indictment be for a felony, the defendant must be present, and shall remain in actual custody during the trial. * * *"

The words "during the trial" have repeatedly been held to embrace all stages of the trial, which, as also held, begins with the swearing of the jury and ends when the verdict is rendered. Allen v. Commonwealth, 86 Ky. 642, 6 S.W. 645, 9 Ky. Law Rep. 784; Willis v. Commonwealth, 85 Ky. 68, 2 S.W. 654, 8 Ky. Law Rep. 653; Collier v. Commonwealth, 110 Ky. 516, 62 S.W. 4, 22 Ky. Law Rep. 1929; Tye v. Commonwealth, 3 Ky. Law Rep. 59; Cooley's Const. Lim., p. 319. In Allen v. Commonwealth, supra, the constitutional right of the accused was defined in the following language, quoted, with approval, from the opinion in the earlier case of Temple v. Commonwealth, 14 Bush, 769, 29 Am.Rep. 442:

"The right to be heard by himself and counsel * * * embraces the right to be present himself, and to have a reasonable opportunity to have his counsel present also, at every step in the progress of the trial; and to deprive him of this right is a violation of that provision of the fundamental law."

Temple v. Commonwealth and Allen v. Commonwealth, supra, were cases in each of which the crime charged was a felony; the conviction in each being for voluntary manslaughter. The judgment in the Temple Case was reversed on appeal because the verdict of the jury was received in the absence of the accused and when he was confined in jail. The Allen Case was submitted to the jury in the absence of the accused, which was strongly condemned by this court as error; but, as the judgment had to be reversed on on another ground, it was held unnecessary to determine whether the error was prejudicial.

There have been a few other cases of conviction for felony in this jurisdiction, in each of which a reversal of the judgment of the trial court was refused, notwithstanding error committed by that court in permitting, during the trial and in the absence of the accused, some act to be done or step taken which should have been done or taken only when he was present. One of these cases was Hite v. Commonwealth (Ky.) 20 S.W. 217, 14 Ky. Law Rep. 308, in which it was held that the occasional absence from the courtroom of the accused, on account of temporary illness, for a few minutes at a time, the trial continuing in his absence, did not so prejudice his substantial rights as to compel a reversal of the judgment of conviction. Another such case was Meece v. Commonwealth, 78 Ky. 586, in which one of the grounds urged for the reversal of the judgment of conviction was error of the trial court in adding to an instruction by interlineation, in the absence of the defendant, but in the presence of his counsel, certain words not of themselves objectionable, which was done after the submission of the case in obedience to a request from the jury, made following their return to the courtroom, that they be further instructed upon the point covered by the interlineation.

Although it was declared by the opinion that "the presence of the accused when instructions are given or modified is essential to the ends of justice," the court refused to reverse the judgment on account of the absence of the accused at the time of the interlineation of the words added to the instruction, because, upon consideration of the whole record, it was of the opinion that his substantial rights were not prejudiced thereby. The following statement of these rulings of the court appears in the concluding paragraph of the opinion:

"One charged with the commission of a felony cannot be tried during his absence from the courtroom, and when any step is taken during the trial in the absence of the prisoner, the record must show affirmatively that he could in no wise have been prejudiced by it, else this court will reverse the judgment. The evidence in this case is so plain as to the guilt of the accused and the enormity of the offense, that no slighter punishment could have been inflicted, and we are satisfied the ends of justice require that the judgment should be affirmed."

As stated, the rule announced in the case, supra, places upon the commonwealth in every case, in which the accused is convicted of a felony, the burden of showing affirmatively, by the record produced on the appeal, that the accused could in no wise have been prejudiced in his substantial rights by any step that may have been taken during the trial, in his absence.

An examination of the few cases, other than those already considered, in which the affirmance of judgments of conviction for felony resulted, notwithstanding the doing of some act or taking of some step during the trial, in the absence of the accused, will, we apprehend, demonstrate that in each of them it affirmatively appeared from the record: (1) That the accused could not have been prejudiced in any substantial right by the error; and (2) that the evidence presented by the record so convincingly established his guilt as to destroy every hypothesis of innocence.

The case of Howard v. Commonwealth, 118 Ky. 1, 80 S.W 211, 81 S.W. 704, 25 Ky. Law Rep. 2213, 26 Ky. Law Rep. 363, cited by counsel, throws little light upon the question under consideration. In that case, while the court was engaged in impaneling a jury, the commonwealth's...