Lee v. State

• Decision Date: 08 April 1912
• Citation: 101 Miss. 387,58 So. 7
• Court: Mississippi Supreme Court
• Parties: HENRY LEE v. STATE

58 So. 7

101 Miss. 387

HENRY LEE v. STATE

Supreme Court of Mississippi

April 8, 1912

March 1912

APPEAL from the circuit court of Quitman county, HON. SAM C. COOK Judge.

Henry Lee was convicted of murder and appeals.

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

Judgment reversed and cause remanded.

P. H Lowery, for appellant.

In this case, even if there had been no error in the admission or exclusion of evidence, and if the testimony had been overwhelming as to the defendant's guilt, and if the correct result had evidently been reached, the appellant would be entitled to a reversal of this case and a new trial because of the matters shown by the evidence on the motion for a new trial, appearing on pages 91 to 109 of the record. From this testimony it clearly appears that the defendant during the trial was absent from the court room during the taking of testimony.

I call the court's attention especially to the testimony of Mr. W. M. Donaldson, beginning on page 96 of the record. Just how much testimony was taken in his absence and what it does, does not very clearly appear, but there can be no possible doubt that a witness was introduced and questions asked and answered in his absence, and that he was entirely out of hearing and view of the court when this was being done.

The rule seems to be so well established in this state that it is not necessary to go outside of our own decision for authorities. Booker v. State, 81 Miss. 391; Sherrod v. State, 93 Miss. 774; McLendon v. State, 96 Miss. 250; Warfield v. State, 96 Miss. 170; Saddler v. State, 53 So. 783; Stanley v. State, 53 So. 497. While in some of these cases, notably Booker's case--it was a state's witness which was being examined and the defendant was in jail, this does not seem to make any difference in principle. The rule is the same where it is the defendant's witness and the defendant is under bond. In that case the court quotes approvingly from State v. Greer, 22 W.Va. 801, as follows:

"We will not inquire whether the prisoner was unfavorably or otherwise affected by the cross-examination of the witness in his absence. He had a right to be present which he did not and could not waive and had the right to observe every look, gesture and movement of the witness while testifying, etc."

In the later case of Sherrod, the court reviews the whole subject citing much authority, and on page 781, quotes approvingly from State v. Jenkins, 84 N.C. 814 as follows: "In every criminal prosecution it is the right of the accused to be informed of the accusation against him and to confront with his witnesses. In capital trials this right cannot be waived by the prisoner, but it is the duty of the court to see that he is actually present at each and every step taken in the progress of the trial."

This was a case where the defendant was under bond and where his absence was voluntary at the time the verdict was returned.

The court holds in its second conclusion, page 778, that the defendant cannot waive his right to be present whether he be in jail, or under bond when the verdict is returned. In the present case he was actually absent while the testimony was being taken, by far the most important thing in the trial. I especially invite the court's attention to this case which gives an exhaustive review of the authorities and reaches the inevitable conclusion that under our system of jurisprudence the defendant must be actually present at every step in the trial of a capital case.

McLendon's case, 96 Miss. 250, is a case where the defendant was in custody and where a state's witness was being examined. This is an extreme case but it conforms to the principles none the less.

Warfield's case, 96 Miss. 170, seems to me to place the right of the accused in a capital case to be present at every step of the trial beyond a peradventure and to establish beyond controversy the right of the appellant here to a reversal and a new trial. There the absence was voluntary, the defendant being under bond, and the only thing occurring in his absence, so far as the record shows, was the asking of some of the jury whether or not they had been members of the grand jury which found the indictment.

If anything further is needed along this line it is found in the Stanley case, 53 So. 497, where almost the identical question here involved is decided. There it was the defendant's witness being examined, and the court, after the defendant was brought into the courtroom, offered to withdraw the case from the jury and also instructed the jury to disregard the evidence which had been heard in the defendant's absence. It is true that in that case the defendant was in custody and his absence was not voluntary but that makes no difference in capital cases, as is firmly established by the authorities heretofore cited.

Frank Johnston, assistant attorney-general, for appellee.

I recognize fully the rule announced by this as well as other distinguished courts, that the defendant, in a capital felony, must be present during the progress of his trial, a rule based upon the principle that the law and the courts are favorable to the rights of a defendant placed upon trial on a charge of a capital felony....