Roberts v. State
| Decision Date | 23 June 1887 |
| Docket Number | 13,375 |
| Citation | 12 N.E. 500,111 Ind. 340 |
| Parties | Roberts v. The State |
| Court | Indiana Supreme Court |
From the Vigo Circuit Court.
The judgment is reversed.
J. R Courtney, for appellant.
L. T Michener, Attorney General, D. W. Henry, Prosecuting Attorney, D. N. Taylor, W. B. Hord and J. H. Gillett, for the State.
Appellant was convicted upon a charge of burglary, and sentenced to the State prison for a period of seven years.
The seventh instruction given by the court was as follows "Under the evidence in this cause, if you find the defendant guilty, it is an aggravated burglary, and you have a right to fix a proper penalty."
That the instruction was erroneous, because it invaded the province of the jury, and was, in effect, an instruction to them to inflict a severe penalty, seems clear. For analogous cases see Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441, and cases there cited.
After the jury retired, and had had the case under consideration for some time, the trial court had them recalled to the court-room, and having stated to them that he had given the above instruction, repeating it, instructed them further, as follows:
The foregoing was clearly an instruction. To withdraw a charge given, and instruct the jury that it is not the law and should be disregarded by them, is as much an instruction as the giving of the charge in the first place. Here, not only was the instruction withdrawn as not being the law, but the jury were further instructed that it was for them to determine the nature of the crime and the punishment to be inflicted. See Stephenson v. State, 110 Ind. 358, 11 N.E. 360.
When the jury retired in the first instance, appellant was returned to the county jail. He had no notice that the jury were to be recalled, nor that they were recalled for further instructions, and was not present when they were recalled and the further instruction given.
Was the giving of the instruction in his absence such error as requires the reversal of the judgment?
The statute provides, section 1786, R. S. 1881, that no person prosecuted for any offence punishable by death, or by confinement in the State prison or county jail, shall be tried unless personally present during the trial. In such cases, the presence of the defendant's counsel does not meet the requirement of the statute. He must be personally present unless he in some way waives that right. Such is the positive requirement of the statute. No court can dispense with it. If the trial, or any substantial part of it, is had in the absence of the accused without his consent, the statute is violated and his rights invaded.
Such an invasion can not be regarded by the courts as a harmless error. Instructing the jury is clearly a part of the trial. If one instruction may be given in the absence of the accused and without his knowledge, there is no good reason why the whole of the instructions may not be given in his absence and without his knowledge. And if this court, looking to one instruction so given, may say that the giving of it in the absence of the accused did not affect his substantial rights, and was, therefore, a harmless error, there would seem to be no good reason why, looking to all of the instructions in the case, given in the absence of the accused, the giving of them did not affect his substantial rights, and was, therefore, a harmless error. To treat such errors as harmless would be to entirely overthrow the statute.
Some of the States have statutes similar to ours, but whether such statutes exist or not, the...
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