Percer v. State

• Decision Date: 04 June 1907
• Citation: 103 S.W. 780,118 Tenn. 765
• Parties: PERCER v. STATE.
• Court: Tennessee Supreme Court

103 S.W. 780

118 Tenn. 765

PERCER v. STATE.

Supreme Court of Tennessee.

June 4, 1907

Error to Circuit Court, Tipton County; S. J. Everett, Judge.

Ben Percer was convicted of murder in the second degree, and brings error. Reversed and remanded.

W. M Simonton and Chas. B. McClellan, for plaintiff in error.

Attorney General Cates, for the State.

McALISTER J.

The plaintiff in error was convicted of murder in the second degree for the unlawful killing of one Alonzo Small, and sentenced to the state penitentiary for a term of 10 years. He has appealed in error.

The second assignment of error on behalf of the prisoner is as follows:

"The court erred in declining to set aside the verdict of the jury and grant the plaintiff a new trial, because the plaintiff in error was not at the bar of the court or in the presence of the court or jury when the verdict of guilty was rendered against him in this cause, but was handcuffed and in charge of an officer, in a room separated from the courtroom and with another prisoner, when said verdict was rendered."

In support of the motion the plaintiff filed his own affidavit and that of W. V. Bringle, a practicing attorney at the Covington bar. Mr. Bringle states:

"That he is not interested nor of counsel in the case; that he was in the courtroom when the jury returned their verdict, and he noticed that defendant was not in the courtroom at that time; that there is a room back of the judge's stand, from which there is a stairway leading up to the tower of the courtroom; that affiant is informed that the defendant was in this room in charge of an officer, and the door of this room opening into the courtroom was closed at the time the said jury returned its verdict; that there is a partition separating said room from the courtroom, and the only means of communication is a door and two windows, and that said windows, as well as the door, were closed at the time said verdict was returned, and the defendant was not in the presence of the court or jury, and was not in a position to see the court and jury, when said verdict was rendered; that the windows to said room are painted so that one cannot see through them, the glass being painted or clouded."

Mr. Bringle was called for further examination by the state and testified as follows:

"I was sitting down by the jury box facing the door which I testified was closed when the jury returned its verdict. I could not have been mistaken about the door being closed, for as soon as the jury rendered its verdict I went to counsel for defendant and called his attention to it. The room where the prisoners are kept is immediately behind the judge's bench, and there is a glass partition between this room and the main courtroom. Then there is a glass door to the prisoner's room to the right of the judge and next to the door to the jury room. There are three or four windows behind the judge's bench, and within three or four feet from where he sits; but the glass in them is frosted. These windows were closed when the jury came in and returned its verdict. The partition separating the two rooms extends from the floor to the ceiling, but forms almost a solid glass partition."

The plaintiff in error in his affidavit states as follows:

"That he has not had a fair and impartial trial, and he was not allowed his constitutional right of being present in the courtroom during the trial in said cause and the rendition of the verdict against him; that is to say, he was not present in the courtroom when the jury in said cause returned their verdict finding him guilty of murder in the second degree and assessing his punishment at ten years' confinement in the state penitentiary. Affiant states that at the time said verdict was returned into the court he was not in the courtroom, but was in a room entirely separated from said courtroom and back of the judge's bench or stand. Said room is separated from the courtroom by a partition, and the only means of communication between the two are a door and some windows. The glass in the windows is painted or clouded, so that one cannot see through them. Said door was closed at the time the verdict was returned into the court, so that defendant could not see the court or the jury, and he was not in the presence of the court, nor in the presence of the jury, but was in said room handcuffed--that is, shackles were on one hand--and in charge of an officer, together with another prisoner.

Wherefore the defendant says he has been deprived of his constitutional rights, and he asks the court that he be granted a new trial, that justice may be done," etc.

The following evidence was submitted on behalf of the state touching the subject of inquiry:

Fred Smith testified as follows:

"I am a deputy sheriff, and was in charge of Ben Percer, the defendant, when the jury came in to render their verdict. I was standing by the door leading to the room where defendant was, and within two or three feet of the door to the jury room. Ben Percer was sitting on a bench cuffed to another prisoner. He was about five or six feet from the foreman of the jury when the verdict was announced. When the jury came in to announce the verdict, Judge Everett told me to push that door open, and I pushed it open, and Ben Percer could see nearly all the jury. When the foreman handed the papers to the judge, he stepped back in full view of the door and in full view of the defendant, and the judge said to the foreman in a tone of voice loud enough to be heard all over the courtroom, and loud enough for Ben Percer to have heard it, "Mr. Foreman, have you agreed upon a verdict?" to which the foreman announced that they had, and stated what the verdict was, and the court reported what the foreman said their verdict was, and asked the jury if that was their verdict, to which they all replied it was. I know the door was open all the time, for I was standing with my head against it holding it open."

On cross-examination the witness further stated:

"The room that Ben Percer was in is directly behind the judge's bench, and separated from the other room by a partition. The door is more than half glass, is in three or four feet of the door to the jury room, and is plain glass. There are three windows in the partition immediately behind the judge's stand and in two or three feet of where the judge sits. They are frosted. The outside windows of the room where Percer was have iron bars across them, and these bars were put there to prevent prisoners from escaping. The room where Ben Percer was at the time the verdict was rendered is used for the safekeeping of prisoners while awaiting trial of their cases."

Louis Ogilbie, deputy sheriff, testified as follows:

"I was sitting over at a stove near the east side of the courthouse when the jury came in to report, and before the foreman reported I heard Judge Everett say something to Fred Smith, and Fred pushed the door open where the prisoner was sitting. This door is a little west of the center of the courthouse, which is to the right and a little to the rear of where the judge was sitting, and is near the door to the jury room."

The Attorney General testified:

"I was sitting just east of Judge Everett, and when the jury came in I heard Judge Everett say to Deputy Sheriff Smith something I did not understand, and Smith with his left hand extended pushed back, as I thought, the door. His entire left arm passed out of my sight into this little room. He could not have gotten his arm out of my sight if the door had been closed. When the jury came in the foreman stepped up and handed the indictment to the judge, and stepped back in front, two or three feet from the door, and the judge in his usual strong voice asked the foreman if the jury had agreed upon a verdict, and, upon his reply in the affirmative, asked what it was, and, upon...