Lee v. State

• Decision Date: 22 April 1943
• Docket Number: 6 Div. 127.
• Citation: 13 So.2d 590,244 Ala. 401
• Parties: LEE v. STATE.
• Court: Alabama Supreme Court

13 So.2d 590

244 Ala. 401

LEE v. STATE.

6 Div. 127.

Supreme Court of Alabama

April 22, 1943

Rehearing Denied June 3, 1943.

Certiorari to Court of Appeals.

Wm. N. McQueen, Acting Atty. Gen., and John J Haynes, Asst. Atty. Gen., for the petition.

Horace C. Wilkinson, of Birmingham, opposed.

FOSTER Justice.

This is an appeal from a judgment of conviction in a capital case but in which the punishment was fixed at fourteen years in the penitentiary.

The question which the Attorney General seeks to have reviewed is the holding that the judgment should be reversed on the ground that as amended it shows that the defendant was not personally present in court when the jury handed their sealed verdict to a regular bailiff of the court, though he was present as were his counsel when the court received and read it. There is an agreement as to the facts material here to mention, as follows:

"The case was regularly submitted to the jury under oral and written instructions by the court, in the presence of the defendant in open court. Before the jury retired, and in open court, the defendant requested that the jury be allowed to return a sealed verdict in the case and, for his convenience and in order to enable him to return to his home, and spend the night at his home, it was, at his request, agreed in open court that he might return home and a sealed verdict returned. It was also agreed by the defendant that if a sealed verdict was returned and the verdict was not in proper form it might be put in proper form by the court.

"The jury deliberated until about 9:30 at night, when they reached a verdict, which was the verdict of each juror in the case. The verdict was written out, signed by the foreman, enclosed in an envelope, sealed and delivered to Mr. E.P. Tucker, one of the regular bailiffs of the court. Mr. Tucker retained the possession of the verdict until the next morning when court opened, at which time the defendant was present and the verdict was read in his presence in open court after it was opened in his presence by the court. Counsel representing the defendant was present at the time the judge opened the verdict and at the time it was read. The jury was not present at the time the verdict was opened and read. No objection was taken at that time.

"When the jury delivered the verdict to Mr. Tucker at 9:30 the night before, they were discharged, with the defendant's consent previously given, and returned to their homes."

The Court of Appeals held that those facts recited in the judgment require a reversal of the judgment, but that on account of the consent of defendant, do not amount to jeopardy which will prevent another trial.

The Court of Appeals declared a rule to be applicable to this, a capital case, and to all other felonies, but not to misdemeanors. That in all felony cases the defendant cannot in person and by express consent waive his personal presence in court when the verdict is returned by the jury to a bailiff of the court, though he and his counsel are present when it is received by the judge and read, and at all other times throughout the trial.

There is of course no controversy but that, unless his presence is waived, a verdict received in the absence of a defendant is void, and is the equivalent of an acquittal; and his presence must affirmatively appear, but the record need not recite that at each step of the trial he was present if it recites his presence at arraignment and when sentence was pronounced. Frost v. State, 225 Ala. 232, 142 So. 427.

We have no case in this State cited in the opinion or briefs, nor found by us, which holds that a defendant cannot personally waive his presence when the verdict is returned by the jury. We have a case which holds that a defendant's counsel cannot so consent in a capital felony case, which was a charge of rape. Waller v. State, 40 Ala. 325, cited in Cook v. State, 60 Ala. 39, 31 Am.Rep. 31, and in Wells v. State, 147 Ala. 140, 41 So. 630, in which there was no consent by defendant or his counsel. That was a misdemeanor case, and what is there stated must be so considered. However, there are expressions in it leading to the idea that all felony cases should have the same treatment in that respect.

The right to be present is said to be guaranteed by the Constitution, section 6, to be heard by himself and counsel, that he may discuss questions of law and fact which may arise, and that he may examine the jury by the poll to ascertain if they assent. State v. Hughes, 2 Ala. 102, 36 Am.Dec. 411.

It is generally held, in agreement with our cases, that counsel for defendant cannot waive his right to be present when the jury returns a verdict unless done in his presence or by his consent or acquiescence. 14 Am.Jur. 911, section 204; 23 Corpus Juris Secundum, Criminal Law, § 975, p. 311, note 52; Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L.R.A., N.S., 509.

The defendant, it is conceded, may by his consent prevent the irregularity from being equivalent to an acquittal, which would be so without such consent.

The constitutional safeguard of section 6, supra, it is also conceded, may be waived in a misdemeanor case, though section 6 is not limited in its scope.

The direct and positive assertions of this Court in respect to the necessity of defendant's presence to sustain a verdict are but the statement of a universal principle existing in the common law. The right to waive his presence is not involved in any such statement.

The question of such right to waive goes deeper in our judicial history than the constitutional provision and deeper than the effect upon the defendant himself of receiving a verdict in his absence, for it is a rule of public policy inherited from the common law.

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