Sherrod v. State

• Decision Date: 30 November 1908
• Docket Number: 13,428
• Citation: 93 Miss. 774,47 So. 554
• Court: Mississippi Supreme Court
• Parties: WILLIAM SHERROD v. STATE OF MISSISSIPPI

47 So. 554

93 Miss. 774

WILLIAM SHERROD v. STATE OF MISSISSIPPI

No. 13,428

Supreme Court of Mississippi

November 30, 1908

FROM the circuit court of Winston county, HON. JAMES R. BYRD Judge.

Sherrod appellant, a negro, was indicted and tried for the murder of another negro, William Liddell, was convicted of manslaughter and sentenced to the penitentiary for five years, and appealed to the supreme court.

The opinion of the court states the facts.

Judgment reversed and cause remanded.

Jones &amp Jones, for appellant.

The court below erred in receiving the jury's verdict in appellant's absence. Appellant was charged with a capital offence, the punishment for which, on conviction thereof, would have been death or imprisonment for life. At common law it is essential to a valid trial and conviction on any felony charge that the defendant shall be personally present, not only when arraigned, but at every subsequent stage of the trial. Bolls v. State, 52 Miss. 391; State v. Kelly, 2 Am. St. Rep. 299; Long v. State, 52 Miss. 23, 37 Am. St. Rep. 643; Lewis v. United States, 146 U.S. 370; Booker v. State, 81 Miss. 391, 33 So. 221.

In felonies not capital the courts make an exception to the foregoing rule in those cases where the defendant is on bond and absconds or voluntarily absents himself at the time the verdict is received.

In the present case the circuit court adjourned, or ordered a recess, late in the afternoon, the circuit judge stating that the court would receive the jury's verdict if they should have agreed bye a certain hour of the night. The jury returned a verdict about nine o'clock that night, and after the appellant had gone to the home of a relative to spend the night. The verdict was received in his absence, and a forfeiture was taken on his bond. Certainly the absence of the appellant at such time of night was not such wilful absence as would waive his constitutional right to be present at the time when the court received the verdict. The court should have had the jury retire, and then have sent for appellant, or at least have given appellant a reasonable time in which to he present. The charge was murder, and no authority can be found which sanctions the court's receiving a verdict in such case in the defendant's absence. That the jury found appellant guilty only of manslaughter cannot change the rule.

In the case of Rolls v. State, supra, SIMRALL, J., said: "The defendant must be personally present during the progress of the trial in cases of felony, especially those in which the punishment may be capital. He must be present during the empanelling of the jury, the delivery of the testimony, the rendition of the verdict, the hearing of the motion for a new trial and in arrest of judgment when the sentence is pronounced." To the same effect are 1 Bishop Crim. Proc. 275; 12 Cyc. 527, ref. "c".

George Butler, assistant attorney general, for appellee.

It is contended by appellant, as the principal ground for reversal of the judgment of the lower court, that appellant was not present in court when the jury's verdict was received. It will however be noted that appellant had been present throughout the trial, and, after the jury retired to consider the case, he voluntarily absented himself from the court room, he being on bond; and when the jury returned their verdict into court it was appellant's own fault that he was not present. In this condition of affairs, the court below adjudged his bond forfeited, received the verdict and polled the jury, appellant's rights being protected as fully as if he were present.

If he absented himself purposely, his act was unlawful, and he should not be heard now to complain. Price v. State, 36 Miss. 531; Stubbs v. State, 49 Miss. 716; Finch v. State, 53 Miss. 363; Gales v. State, 64 Miss. 105, 8 So. 167.

The crime of which appellant was convicted was not capital, hence his presence might be waived by his voluntary absence or by his absconding. 12 Cyc. 527.

OPINION

WHITFIELD, C. J.

The appellant was indicted for murder, and convicted of manslaughter, and sentenced to five years in the penitentiary.

At the time of the trial appellant was on bond, but present during the progress of the trial until the case was given to the jury, when he voluntarily absented himself and went into the country to spend the night, as he says, though the court announced in his presence before the jury that if a verdict should he agreed upon before 11 o'clock that night he would return to the courthouse and receive it. About 8:30 o'clock the jury came in to render their verdict, and the appellant could not, be found. The verdict was received in his absence and this is assigned for error. It will thus be seen that this is an indictment charging a capital offense, and that the appellant's absence when the verdict was received was voluntary; that he was not in jail, and thus subject to the power of the court to have him present.

The learned assistant attorney general, in endeavoring to save the case, cites four authorities: Gales v. State, 64 Miss. 105, 8 So. 167; but that was an indictment for assault with intent to kill and murder, not a capital charge at all, and is not in point. Finch v. State, 53 Miss. 363; which was an indictment for grand larceny, and is also not in point. Stubbs v. State, 49 Miss. 716, in this case the indictment was for murder, but the case is not in point here, for the reason that Stubbs was in jail, and not on bond, in which respect, the Stubbs case is not like the Finch case, supra. Finch also was in jail when the verdict was received. Price v. State, 36 Miss. 531, 72 Am. Dec. 195; but that was an indictment for assault with intent to kill and murder, and is therefore not in point.

In this case it was held, the case not being a capital one, that since the defendant was on bond, and had voluntarily absented himself, he could not complain of the verdict having been received in his absence. He was present when the trial began, and When the case was put to the jury, but absconded before the verdict was rendered. It will thus be seen that, of the four cases cited by the learned assistant attorney general, only one was a case where there was an indictment for murder, and in that case the judgment was reversed, because defendant was not present when the verdict was received, he being in jail at the time, and the reasoning of the court would indicate that it would have been reversed for that reason whether he was in jail or out of jail, though that is not expressly stated; the charge being a capital one. We have no case exactly like this in which there was an indictment for murder, and the defendant, being on bond, voluntarily absented himself when the verdict was returned, having been present throughout the trial up to that time.

We have most carefully examined all authorities cited on both sides, and many more, and as a result of this examination we announce the following conclusions:

First. In the trial of all felonies, not capital, where the defendant is on bond, and has been present throughout the delivery of the testimony, up to the rendition of the verdict, but is absent at the rendition of the verdict voluntarily, he will not be permitted to avail himself of his own wrong in being thus voluntarily absent, but the verdict may be properly received in his absence. In other words, he may waive the right to be present when the verdict is received, which is not, as seems popularly supposed, a constitutional right, though a very sacred right, secured by the common law as well as by statute.

Second. Wherever the charge is a capital one, the courts have held uniformly, in favorem vitae, that the defendant cannot waive his right to be present, and that whether he be in jail, subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence.

Third. Even in felonies not capital, if the defendant be in jail when the verdict is received, it is fatal error.

Fourth. In cases not capital, the right of the defendant, where he is on bond, to waive his own presence when the verdict is received, is strictly his personal right, and no such waiver can be exercised for him by his own counsel.

These four propositions are clearly sustained by an overwhelming weight of authority. Indeed, we have found no case anywhere holding that, where the charge is a capital one, the defendant's failure to be present at the time the verdict is rendered is not fatal error, whether he be in jail or whether he be on bond. We will refer briefly to a few of the authorities.

In support of the first proposition above we cite the cases cited by the learned assistant attorney general supra, except the Stubbs case, Bishop's New Criminal Procedure, vol. 1, § 273, and the learned note of Mr. Freeman in 28 Am. Dec. 630, 631. In this note he points out the two lines of authorities holding, the one that the record must affirmatively show the presence of the prisoner when the verdict is received, which is the rule in Mississippi (Kelly v. State, 3 S. & M. 518), and the other rule, which he pronounces the better rule, which he declares in these terms: "In view of the fact that the appellate court will not presume error on the part of the court below, it seems somewhat difficult to perceive the justice of these decisions. The doctrine best supported by authority, and, as it seems to us, best sustained by reason, is that where the record shows that the accused was present at the commencement of his trial, and nothing to the contrary appears therefrom, it will be presumed that he was present at every subsequent stage of the proceeding down to the rendering of the final judgment of the court." In Rolls v. State, 52 Miss. 391 at 395, the record was...