Smith v. People

• Citation: 8 Colo. 457,8 P. 920
• Parties: SMITH v. PEOPLE.
• Decision Date: 11 December 1885
• Court: Colorado Supreme Court

8 P. 920

8 Colo. 457

SMITH v. PEOPLE.

Supreme Court of Colorado

December 11, 1885

Error to criminal court, Lake county.

Taylor & Ashton and E. T. Taylor, for plaintiff in error.

T H. Thomas, Atty. Gen., for the State.

BECK C.J.

The plaintiff in error was tried and convicted of the criminal offense of receiving stolen property, knowing it to have been stolen, at the December term, 1884, of the criminal court of Lake county. The jury stated in their verdict that the property so received by the defendant was of the value of $50. A motion for a new trial was overruled, and thereupon the court sentenced the prisoner to confinement in the penitentiary for a term of three years.

One of the errors assigned is that the prisoner was not present when the jury returned this verdict of guilty. It is a general rule of law that the prisoner, in cases of felony must be present at every step in the proceedings, or the proceedings will be invalid. So important is this right that, except in cases of misdemeanor, it cannot be waived by counsel. If the prisoner is deprived of the privilege of being present when the verdict is returned, the verdict must be set aside and a new trial granted, or the judgment will be reversed. Green v. People, 3 Colo. 68; 3 Whart. Crim. Law, §§ 2991, 3364. Exceptions are made as to the necessity for the continued presence of the prisoner throughout the entire trial, which include voluntary absence from the court-room for a few moments, also such violent conduct on the part of defendant as to render it necessary to remove him in order that the trial may proceed. Where absence occurs from such causes, it is said to be no ground of error, provided the prisoner is brought into court before the verdict is formally announced. 3 Whart. Crim. Law, § 3365.

Another error assigned, and one which we regard as fatal to the judgment below, was the refusal of the court to grant the defendant's motion for a new trial, based on the ground of certain misconduct of the acting district attorney which was prejudicial to the rights of the defendant. The record shows that the special district attorney, who had been appointed by the court to appear and prosecute this case on behalf of the people, in his closing address to the jury, 'stated and argued to the jury that he had stated in the opening of this case that he expected to prove that the defendant had stated, 'As Mollie Gorman was dead, she did not fear a conviction,' but the court had prevented him from so doing; to which statement, so made by said attorney, the defendant then and there duly excepted, and protested against counsel making any other or further statements of like import, and that the judge cautioned said attorney from making any further comments of like import, and further stated to the jury that they should disregard such statement. Thereupon said attorney further stated that he had further expected to prove, as stated in his opening, that the defendant had murdered Mollie Gorman; to which statement, so made by said attorney, the defendant then and there duly excepted. Said attorney further stated, in his closing address to the jury, that ' the defendant forgot to explain to the jury that the reason she gave Casserleigh the sum of $25 was that she expected the enraged miners to blow up her house on account of the murder of Bulkley,' to which statement, so made by the said attorney, the defendant then and there duly excepted.'

The action of the prosecuting official, as above set forth in the record, constitutes gross misconduct on his part, and a total disregard of the legal rights of the prisoner....