Lee v. State, 6 Div. 942.

Citation31 Ala.App. 91,13 So.2d 583
Decision Date02 March 1943
Docket Number6 Div. 942.
PartiesLEE v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied March 16, 1943. [Copyrighted Material Omitted]

Horace C. Wilkinson, of Birmingham, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Bowen W. Simmons, Asst Atty. Gen., for the State.

SIMPSON Judge.

The defendant was indicted and tried for a capital felony. It was charged that he "did carnally know, or abuse in the attempt to carnally know Elese Lee, a girl under the age of twelve years," etc. The statute prescribes punishment of imprisonment in the penitentiary or death, at the discretion of the jury. Code 1940, Title 14, Sec. 398. The jury assessed punishment in the case at fourteen years imprisonment.

The verdict returned was not received in open court in the presence of the defendant, as the law requires, but, to the contrary, was delivered in a sealed envelope to the bailiff after court had adjourned and in the absence of the judge and the defendant. The jury was thereupon allowed to disperse and were never again reassembled.

It has been uniformly held by our appellate courts that, in a felony case, a verdict rendered in the absence of a defendant is a nullity, in fact is no verdict, and if so rendered and there is an unauthorized discharge of the jury, this results in the acquittal of the defendant. Whitehurst v. State, 3 Ala.App. 88, 57 So. 1026; Waller v. State, 40 Ala. 325; Cook v. State, 60 Ala. 39, 31 Am.Rep. 31; Jackson v. State, 102 Ala. 76, 15 So. 351; Hayes v. State, 107 Ala. 1, 4, 18 So. 172; Wells v. State, 147 Ala. 140, 142, 41 So. 630; Harris v. State, 153 Ala. 19, 49 So. 458.

The record must affirmatively show the prisoner's presence at each successive step in the trial. Young v. State, 39 Ala. 357; Frost v. State, 225 Ala. 232, 142 So. 427.

It was declared by this court in the Whitehurst case, 3 Ala.App. 88, 57 So. 1026, above (opinion by DeGraffenried, J.), that: "Undoubtedly a writing delivered by a jury in a felony case to a court, or the clerk of the court, in the absence of the defendant, is no verdict. In a felony case it is essential that the verdict of the jury shall be rendered in open court in the presence of the judge and of the defendant. Hayes v. State, 107 Ala. 1, 18 So. 172." (Our emphasis.)

Cases by our Supreme Court (supra) are of like tenor. In Cook v. State, 60 Ala. 39, 31 Am.Rep. 31, declaring the necessity of the defendant to be present at the rendering of the verdict, it was held that "if [the verdict is] rendered against him during his absence, it is void", 60 Ala. at page 40, 31 Am.Rep. 31. And in the Waller case, 40 Ala. 333, it was stated that defendant's counsel could not "waive the right of a prisoner, charged with a felony, to be present when the jury delivered their verdict to the court."

Hence the purport of the holdings of all of our cases is that, in felony cases, the personal presence of the defendant when the verdict is rendered is absolutely essential and if he is not present the verdict is entirely a nullity. He must be (not is entitled to be) present at the rendering of the verdict. Thus was the language of the opinion by the late and learned Chief Justice Anderson of our Supreme Court in the Wells case, 147 Ala. at page 142, 41 So. at page 631 where the holding was: "In cases of felony the prisoner must be [not is entitled to be] personally present when the jury return their verdict, and to support a conviction the record must affirmatively declare his presence. Hughes' case, [State v. Hughes] 2 Ala. 102, 36 Am.Dec. 411; Eliza's case, [Eliza v. State] 39 Ala. 693; Waller's case, 40 Ala. [325] 326. And in a case of felony it is error to allow the verdict to be received by the clerk during a recess of the court in the absence of the prisoner, even though this be done with the consent of his counsel. Waller's case, supra." (Emphasis supplied.)

The learned Attorney General, in sponsoring the sustention of the action, here, of allowing the receiving of the verdict and the discharge of the jury after adjournment of court and in the defendant's absence, does not seriously question the correctness of the foregoing principles, but contends that the defendant waived the right to claim such invalidity by his previous consent and request that the verdict be returned in his absence. (The record does not show that he consented that the verdict be received by the bailiff after adjournment of court or in the absence of the judge.)

The inquiry, then, is whether or not the defendant may--or can--juridically divest himself, by consent or waiver, of this constitutional protection (and it has been held to be a constitutional right, State v. Hughes, 2 Ala. 102, 36 Am.Dec. 411; Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 137, 36 L.Ed. 1011, 1013; Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed. 262; Percer v. State, 118 Tenn. 765, 103 S.W. 780; Riddle v. Commonwealth, 216 Ky. 220, 287 S.W. 704) to be personally present when the verdict of the jury is returned. In other words: Is his personal presence at the rendition by the jury of the verdict against him in a felony case--here a trial for a capital offense--indispensable to the validity of the proceedings, or can he waive his personal presence during this critical stage of his trial? "Trial" in a criminal case includes the rendition of the verdict. State v. Reed, 65 Mont. 51, 210 [31 Ala.App. 95] P. 756; Riddle case, supra; State v. Thompson, 56 N.D. 716, 219 N.W. 218.

A difference of opinion may prevail elsewhere as to this question (14 Am.Jur., p. 909, Sec. 203, West's Digest Series, Crim.Law, 636(8)), but it seems settled by the foregoing Alabama authorities that in a felony case, the personal presence of the accused at the rendition of the verdict by the jury cannot be dispensed with. The phraseology of the opinions in these cases, and others of similar holding dealing with the subject, is too clear and strict to admit of other interpretation. As instances: In the Cook (a felony) case, 60 Ala. 40, 31 Am.Rep. 31, it was stated that the rendering of such a verdict against the defendant was "void"; and in the Wells case (147 Ala. at page 142, 41 So. at page 63), that in a felony case the defendant "must be [not may be] personally present when the jury return their verdict and to support a conviction the record must affirmatively declare his presence."

If so, and the proceedings are void when the verdict is otherwise rendered, then it is not conceivable that the consent or waiver of the defendant can give life and effect to that which was inherently void and a nullity.

Likewise, in Wells, supra, the clear and positive inference is made that a defendant, in a felony case, cannot waive his personal presence, (1) where it was said that counsel could not waive it--and we perceive no distinction in principle whether acting by himself or through counsel--and (2) where it was stated: "The foregoing rule relates to the trials of misdemeanors, as well as felonies, except the defendant may waive the right to be present when the verdict is returned and other formalities connected with the return and reception thereof in misdemeanor cases." (Our italics.)

Thus, of course, the converse follows that in felony cases he cannot waive this right.

If the foregoing opinions by eminent Justices of our Supreme Court are to be our guide (and they must be, Code 1940, Title 13, Sec. 95), then the conclusion must result that the verdict of the jury here, as in the cited cases, was a nullity--was void--and totally ineffectual to support the judgment of conviction. This, too, upon the general principles hereinabove stated, without reference to the fact that the defendant in this case was tried for a capital crime.

Erudite discussion of the rule is found in the case of Noell v. Com., 135 Va. 600, 115 S.E. 679, 681, 30 A.L.R. 1345, 1349, 1350. We trust the importance of the question justifies further illustration and the following quotation therefrom, to-wit: "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 provided for his trial and without which the courts have no jurisdiction to pronounce judgment upon him. Constitutional provisions and statutory enactments not in conflict with such provisions may modify or abrogate this general rule. But in the absence of constitutional or statutory change--and there is none as to felony cases in Virginia [nor in Alabama]--conformity to the rule is essential to jurisdiction, and the accused cannot waive it."

See also Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262; Lewis v. United States, 146 U.S. 370, 371, 372, 13 S.Ct. 136, 36 L.Ed. 1011; State v. Reed, 65 Mont. 51, 210 P. 756.

In the present--a capital--case, the correctness of our conclusion is certainly not subject to successful challenge.

The almost universal rule is--and in Alabama the law has always been--that "the right to be present during the trial of an indictment for felony cannot be waived by accused in a capital case." 23 C.J.S., Criminal Law, § 975, p. 309, 310, id. note 39, p. 310; State ex rel. Battle, 7 Ala. 259, 262; McCauley v. State, 26 Ala. 135, 138.

Before this rule was applied in all felony cases, it was regarded by our courts as axiomatic in the trial of capital cases. The observation in the case of State ex rel. Battle, 7 Ala. 259 262, is typical, where it was said: "We [have]...

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