Miles v. State
| Decision Date | 27 March 1944 |
| Docket Number | 27906. |
| Parties | MILES v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Putnam Circuit Court; Marshall D. Abrams, Judge.
Robert Lee Brokenburr, of Indianapolis, for appellant.
James A. Emmert, Atty. Gen., Frank Hamilton and Frank E. Coughlin Deputy Attys. Gen., for appellee.
Appellant was tried and found guilty by jury on an indictment for rape and sentenced to imprisonment in the State Prison. His motion for new trial was overruled and the ruling is assigned as error. Affidavits and counter-affidavits were considered as evidence in support of specifications of the motion and have been brought into the record by bill of exceptions. The affidavits disclose without controversy that after the jury had been deliberating five or six hours the judge proposed to reread the instructions, called to the court room the appellant's attorney (who does not appear in this appeal) and asked if he desired that appellant be brought from the jail to the court room. The attorney expressly waived appellant's presence whereupon the judge read to the jury for the second time all the written instructions and directed the jury again to retire and attempt to agree upon a verdict. Appellant himself made no affidavit. There is no showing except by inference from the fact that he was then in jail that he did not know what was transpiring or that he did or did not authorize such waiver by his attorney. The question is presented whether upon this state of the record the court erred in not requiring appellant's presence in the court room.
In many cases it has been said that the accused has the right to be present at every stage of a trial in a prosecution for a felony. See authorities collected in 16 C.J., Criminal Law p. 813, 23 C.J.S., Criminal Law, § 973; 14 Am.Juris., Criminal Law § 189. The early history of the development of the rule is found in Bennett & Heard's Leading Criminal Cases, 2d Ed. 435, as a note to Sperry v. Commonwealth, 1838, 9 Lehigh, Va., 623, 33 Am.Dec. 261, wherein it is said:
'The principles on which this practice is founded are supposed to be too obvious to need explanation or illustration.'
The principles, however, are not 'obvious' with respect to the right of the accused to be present during the instruction of the jury. We can see how common law judges, in order to forestall any possible contention of a convicted defendant that he had been prejudiced by something which occurred in his absence, may have adopted the practice of requiring their clerks to make a record in each case for each day of a trial showing the presence of the accused. This spoke the truth because in the early English trials the prisoner was invariably in court, often in shackles, and was only absent when he escaped from custody. So out of this requirement probably grew the statement that the accused had a right to be present at every stage of the trial. We can now see some reasons, not too strong, why it is for the defendant's advantage to be present during instruction of the jury. He may not be well represented by counsel and himself may be able to inform counsel or the court of some prejudicial misstatement of law. Or he may note and protest the inflection of the judge in over emphasizing instructions to his detriment. He may watch the jurors in entering or leaving the court room, or while they are there, for such misconduct as speaking or otherwise communicating with bystanders. While he may be unduly suspicious and think conduct prejudicial when in fact the proceedings are wholly regular, by his presence he has the opportunity of noticing and presenting for further investigation and assignment as error any word or act which he deems irregular or harmful. If these personal privileges were all that the rule involves there would seem to be no reason why they might not be waived. Some courts have said, however, that there is a public interest in the trial of the accused which prevents such a waiver. One of these is Hopt v. People of Utah, 1884, 110 U.S. 574, 4 S.Ct. 202, 204, 28 L.Ed. 263, in which Mr. Justice Harlan says that deprivation of his right to be present would be without due process. But his argument upon which the conclusion is based, when analyzed, is that 'the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial * * *,' or, in effect, that it is a personal privilege of the accused. See further criticism in Davidson v. State, 1913, 108 Ark. 191, 158 S.W. 1103, Ann.Cas.1915B, 436. Other courts have said that his presence is jurisdictional so that his absence deprives the court of the right to proceed. See Andrews v. State, 1855, 34 Tenn. 550; State v. Reed, 1922, 65 Mont. 51, 210 P. 756; Maurer v. People, 1870, 43 N.Y. 1; Noell v. Commonwealth, 1923, 135 Va. 600, 115 S.E. 679, 30 A.L.R. 1345. In the last case it was held that the jury might not view the premises in his absence but in Indiana it is settled to the contrary. Shular v. State, 1885, 105 Ind. 298, 4 N.E. 870, 55 Am.Rep. 211. Most courts, however, do not accept the jurisdictional view but do hold, in many cases, that it is error to proceed in the absence of the accused. In attempting to sustain the rule as a constitutional privilege of the accused it has been read by implication into the Bill of Rights. See Andrews v. State, supra, State v. Blackwelder, 1866, 61 N.C. 38, 1 Phil. 38; People v. McGrane, 1929, 336 Ill. 404, 168 N.E. 321. But we find in none of these Constitutions any right stated that by reasonable implication includes the right to be present at the time when the jury is instructed unless it may be the right 'to be heard by himself and counsel'. Ordinarily this is a time for their silence, particularly since instructions have been required to be in writing and since under Rules 1-7 no objections not made prior to their first reading are available on appeal. Many states have statutes declaratory of the common law right or requirement, which ever it may be called. Our statute was first enacted in 1843 and again with slight change in 1852 immediately after the adoption of the present constitution, as follows:
'No person prosecuted for any offense punishable by death or confinement in the state prison or county jail shall be tried unless personally present during the trial.' § 9-1801, Burns' 1942 Replacement.
In three cases this statute was said to be mandatory, State v. Willson, 1875, 50 Ind. 487, 19 Am.Rep. 719; Roberts v. State, 1887, 111 Ind. 340, 12 N.E. 500; Ray v. State, 1934, 207 Ind. 370, 192 N.E. 751. We can see no reason, however, why the requirement of a mandatory statute, if enacted only for the benefit of the accused, may not be as readily waived as a common law or constitutional right or privilege. In the recent case of Brown v. State, 1941, 219 Ind. 251 37 N.E.2d 73, 137 A.L.R. 679, it was held that the constitutional right to a trial 'in the county in which the offense shall have been committed' may be waived and that case cited authorities holding that a person accused of crime may waive his right of trial by jury, his right to be heard by himself and counsel or his right to be confronted by the witnesses face to face. See also Irwin v. State, 1942, 220 Ind. 228, 41 N.E.2d 809; Boggs v. State, 1856, 8 Ind. 463. In Butler v. State, 1884, 97 Ind. 378, citing Veatch v. State, 1878, 60 Ind. 291, Judge Elliot showed that by obtaining a new trial upon an indictment for murder and conviction of manslaughter he waives double jeopardy upon the murder charge. If the statute, which is declaratory of the common law practice, is to be given greater force even than these constitutional privileges it must be because of a public interest to be found behind the rule. We have already suggested the possibility that the common law judges found that interest in forestalling contentions of prejudicial proceedings in accused's absence. We see no reason why that same public interest does not now exist. Insistence upon the regularity of the proceedings gives stability to our criminal jurisprudence. A record of the presence of the accused at every session of the court during the trial protects the court itself against claims of prejudice which may be asserted not merely on appeal, but in coram nobis proceedings filed long afterward, perhaps, when the testimony of the court's is unavailable. Though the rule originated merely because of the insufficiency of the process of the common law court, see Rex v. Duke, 1697, Holt, 399, 1 Salkeld 400, 1 Ld. Raym. 267 Skin. 684 it has existed for centuries and has been recognized almost universally as fundamental. If we say that the presence of the accused is not required when the instructions are reread may we not go farther and say that it is not required when they are first read? If the presence of his attorney only is sufficient in the one instance why not in the other? There is no apparent place to draw a line. It may be true that appellant, if he had been present, would have remained silent. Since the instructions are not questioned in this appeal we should assume that they correctly state the law. There is no charge that they were read in a prejudicial manner. If they...
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