McVay v. State

• Decision Date: 15 July 1912
• Citation: 150 S.W. 125,104 Ark. 629
• Parties: MCVAY v. STATE
• Court: Arkansas Supreme Court

150 S.W. 125

104 Ark. 629

MCVAY v. STATE

Supreme Court of Arkansas

July 15, 1912

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

Judgment affirmed.

J. L Shaw, Coleman & Gantt and Bradshaw, Rhoton & Helm, for appellant.

1. The court erred in not dismissing the jury on appellant's motion. 82 Ark. 188.

2. Under the indictment, appellant could not have been legally convicted unless he himself fired the fatal shot. It was not sufficient to enable him to prepare his defense, in that it did not set out the nature and circumstances of the offense and the facts constituting the offense, nor did it advise him that in the trial the State would rely upon proof that another person or persons did the killing, and that appellant was guilty simply by virtue of the fact that he stood by aiding and abetting, or was present and ready and consenting to aid and abet. Section 1563, Kirby's Digest, does not apply to accessories before the fact. 37 Ark. 274; 41 Ark 173; 55 Ark. 593; 96 Ark. 58. See also, 5 Ark. 230; Joyce on Indictments, 525, § 428; Wharton on Homicide (3 ed.) (Bowlby) 56, § 46; 58 Ark. 47; 10 Enc. Pl. & Pr. 156; 53 P. 709; 84 Ky. 229.

3. The act of the trial judge in leaving the court room while the argument was in progress and in remaining away entirely out of sight and hearing of the proceedings for a quarter of an hour or more was reversible error. 71 Ark. 102, 114; 88 Ark. 62, 68; 72 Ark. 320, 322; 39 Ark. 254; 42 Ark. 126; 97 Ark. 137, 142; 41 L. R. A. (Miss.) 569, 570.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. The adjournment of a court, properly opened and organized at a regular term, over to a day beyond the time for opening and holding a regular term in another county of the same circuit, does not operate to lapse the term of court begun in the first county, but the reconvening of the court at the time stated in the order of adjournment is but a continuation of the term. 32 Ark. 278; 38 Ark. 449; 48 Ark. 227; 57 Ark. 1; 65 Ark. 404; 82 Ark. 188; 97 Mass. 214; 61 Ga. 182.

2. Where, with the knowledge and consent of counsel for a defendant being tried on a criminal charge, the trial judge absents himself for a short time from the court room, and the defendant voluntarily proceeds in the trial, the act of the judge in leaving the court room is not within itself reversible error, but it must be shown that some act occurred during the absence of the judge prejudicial to the rights of the defendant. 97 Ark. 137; 89 N.W. 1083, and cases cited; 112 N.W. 784; 47 So. 37; 48 Ind. 470; 135 S.W. 562; 19 Ill.App. 125; 58 Ga. 35; 81 Ga. 301; 92 Ga. 65; 1 Mo.App. 179. See also, 105 Ia. 677; 41 L. R. A. 569; 26 Col. 542; 95 S.W. 1037; 117 S.W. 156; 41 N.Y. 504.

MCCULLOCH, C. J. HART and KIRBY, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Defendant, John McVay, was indicted by the grand jury of Jefferson County for the crime of murder in the first degree, charging the killing of J. W. Ethridge.

The trial of the cause resulted in a verdict of guilty as charged, and judgment was duly rendered fixing the death penalty.

The motion for new trial contains forty-nine assignments of error, but we need only discuss the few assignments relied on here in the brief and in oral argument of defendant's counsel. The others have, however, been examined by the court, and none is found to be sufficient to call for the reversal of the judgment.

The case was set for trial Monday, February 5, 1912, and on that day defendant waived arraignment and entered a plea of not guilty, and selection and impaneling of the jury to try the case was begun. This consumed four days, and on the completion of the jury the court ordered an adjournment over to February 26, 1912, the jury being placed in the charge of an officer and ordered to be kept together. During the period of the adjournment, a regular term of the circuit court of Lincoln County, one of the counties in the same judicial circuit, and presided over by the same judge was held and completed. When the court reconvened on February 26, 1912, according to adjournment, the defendant moved for a discharge of the panel and for the impaneling of a new jury on the ground that the jury originally impaneled became functus officio on account of the holding of said circuit court of Lincoln County. The court overruled the motion, and the trial proceeded, over defendant's objection, before said jury.

The contention of the defendant, stating it in the language of his counsel, is that "the convening of the court in Lincoln County terminated the service and function of the jury which had been impaneled in this case," upon the theory that "a jury can not be a jury without the court or without the court being in session."

Counsel rely on the case of Roberts & Shafer Co. v. Jones, 82 Ark. 188. But the court merely held in that case that, to extend the session of a term of the circuit court in one county beyond the regular term of court of another county in the same circuit, an order of adjournment to a fixed date must be made by the court, otherwise the term lapsed upon the convening of the court in the other county.

The statutes of this State provide that "special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge in term time, and entered by the clerk on the record of the court." Kirby's Digest, § 1531. This statute confers authority to adjourn to a day beyond the intervening term of court in another county in the same circuit. Galbreath v. Mitchell, 32 Ark. 278; Vaughan v. State, 57 Ark. 1, 20 S.W. 588; Roberts & Schaeffer Co. v. Jones, supra.

When the court reconvened, it did not begin a new term, but that constituted a continuation of the old. Davies v. State, 39 Ark. 448. The court stood as originally organized, and the adjournment over to a certain day did not operate as a discharge of the regular juries, grand and petit, nor of a jury impaneled in a particular case. Commonwealth v. Bannon, 97 Mass. 214. If the court had the power to order an adjournment over to another day, that necessarily carried with it the power to retain the entire organization as constituted at the time of the adjournment. This does not conflict with the rule established by decisions of this court that two circuit courts can not be held at the same time in the same circuit when there is only one regular judge to preside. Retaining an impaneled jury does not amount to an attempt to keep the court in session, nor is it correct to say, as contended by counsel, that a jury can not be retained without the court remaining in session continuously from day to day. The court could, in the exercise of its discretion, have permitted the jury to separate during the period of adjournment (Kirby's Digest, § 2390), and the fact that the court ordered the jury to be kept together did not affect its power to retain the jury during the period of adjournment. Retaining the impaneled jury and keeping the jurors together did not amount to a continuation of the court's proceedings during the period of adjournment. It is not shown that the jurors were exposed to any contaminating influence during the period of adjournment, nor that anything occurred which might have operated to defendant's prejudice. We are, therefore, of the opinion that this assignment can not be sustained.

The assignment of error which gives us most serious concern is the one that the trial judge absented himself from the court room during the argument of the case to the jury. The record recites that during the argument of one of the attorneys for the State the presiding judge left the bench and called a member of the bar, not interested in the trial, to formally preside during his absence, and that he left the court room (a portion of the time out of the courthouse), and remained out of sight or hearing for a period of ten or fifteen minutes; that during the absence of the judge said attorney for the State concluded his argument, and one of the defendant's attorneys commenced his argument to the jury. The record further recites that, when the trial judge left the bench and descended to the floor of the court room for the purpose of leaving, he approached one of defendant's attorneys and said, "I want to leave the court room for a few minutes; will there be any objection or exception because of my absence?" to which the attorney replied, "No, that will be all right; go ahead;" that just after the judge left the room he met another of defendant's attorneys in the corridor about sixty feet from the court room door, informed the latter that he was absent with the consent of the other attorney, and the reply was: "That is all right."

It is affirmatively shown that nothing actually prejudicial to defendant's rights occurred during the absence of the judge. Does the absence of the trial judge under those circumstances vitiate the entire proceedings and call for a reversal of the judgment? In Stokes v State, 71 Ark. 112, 71 S.W. 248, it was held to be reversible error for the judge in the trial of a criminal case to leave the court room without suspending the trial, whether his absence resulted in actual prejudice to the rights of the defendant or not. The controlling difference between that case and this one is, that in the present case the absence of the judge was expressly consented to by defendant's counsel. The doctrine of the Stokes case has been approved by two later decisions of this court, namely, Skaggs v. State, 88 Ark. 62, 113 S.W. 346, and Kruse v. St. Louis, I. M. & S. Ry. Co., 97 Ark. 137, 133 S.W. 841. We feel no disposition to overrule the Stokes case nor to impair the force of the rule there announced, but that does...