Stanley v. State

• Decision Date: 21 November 1910
• Docket Number: 14716
• Citation: 53 So. 497,97 Miss. 860
• Court: Mississippi Supreme Court
• Parties: JOHN STANLEY v. STATE OF MISSISSIPPI

53 So. 497

97 Miss. 860

JOHN STANLEY v. STATE OF MISSISSIPPI

No. 14716

Supreme Court of Mississippi

November 21, 1910

FROM the circuit court of, first district, Carroll county, HON GEORGE A. MCLEAN, Judge.

Stanley appellant, was indicted and tried for the murder of one Henry Hill, was convicted of manslaughter, sentenced to the penitentiary for ten years, and appealed to the supreme court.

The opinion of the court states the facts of the case.

Judgment reversed and cause remanded.

W. S Hill, for appellant.

The appellant, during the trial, was in the custody of the sheriff, and during the recess of the court he was kept in the county jail, being brought into court and taken out by the proper officer at proper times. On the convening of the trial court after a recess taken for dinner, during the progress of appellant's trial, the sheriff failed to produce the appellant promptly, yet the court below ordered the examination of witnesses to proceed, appellant's absence being unnoticed. One witness, Phoebe Anne Hill, was placed upon the stand for further examination, and the examination had continued for some time, when it was discovered that appellant was not present in the court room. Thereupon the trial court stopped the proceedings, ordered the appellant brought into court, and then had read to the jury in the appellant's presence the official stenographer's notes of the testimony of the above mentioned witness. Upon objection by appellant's counsel, this reading of the stenographer's notes was excluded from the jury, and the testimony of Phoebe Anne Hill was then repeated by her on the trial in the presence of the appellant. The court below offered to enter a mistrial and to try the case de novo, or proceed with the present trial, just as counsel for appellant desired. Counsel for appellant stated to the court that he had no suggestions to make to the court and that the court could take such action as it saw fit; and that appellant did not waive any rights which he might be entitled to on account of this irregularity in the trial.

This was incurable error. Foster v. State, 70 Miss. 755; Booker v. State, 33 So. 221; Sherrod v. State, 93 Miss. 774.

Carl Fox, assistant attorney general, for appellee.

Under section 26 of our constitution, the defendant has a right "to be heard by himself or counsel, or both, to demand the nature of the accusation, and to be confronted by the witness against him." Phoebe Anne Hill was appellant's own witness; not a witness against him, and she was being examined by appellant's counsel, while appellant was absent from the court room. Appellant, under the circumstances, cannot claim that he has been denied any constitutional right, nor is it necessary for the appellee to prove that appellant waived any right given to him by the constitution.

This witness, Phoebe Anne Hill, was asked and answered only six questions during appellant's absence; and not one of the questions or answers could be construed unfavorably towards appellant.

Appellant was being tried for a capital offense, but he was not convicted of such. In view of the result of the trial convicting him of manslaughter, it was the same as if he had originally been charged with such a crime.

In the Sherrod case, 93 Miss. 774, the defendant was absent when the verdict was received. In the case at bar appellant was present when the verdict was received. This appellant, defendant in the court below, had an impartial trial; the evidence offered to prove his guilt was sufficient to warrant the verdict.

OPINION

MCLAIN, C.

The appellant was tried in the circuit court of the first district of Carroll county on an indictment charging him with murder, and was convicted of manslaughter, and sentenced to the penitentiary. From this judgment the defendant appeals to this court.

There are several assignments of error, but we will only consider the fourth assignment, which is as follows: "Because, on convening of court, after the noon recess, the witness Phoebe Anne Hill was examined under the direction of the court, in the presence of the jury, and in the absence of the defendant, who was then in jail, in the custody of the sheriff." It appears from the record that, on the reassembling of the circuit court after the noon recess, the examination of Phoebe Anne Hill, a witness for the defendant was begun before the jury, and had proceeded at some length, when the court's attention was called to the fact that the prisoner was absent. The following then occurred, as it appears from the record: "At this point, by order of the court, the jury returned to their room, beyond the hearing of the court. The court here states to counsel for the defendant that he will withdraw the case from the jury, and impanel a new jury, and let the case proceed to trial de novo, if he demands it, inasmuch as these questions were asked this witness in the absence of the defendant." Counsel for the defendant stated to the court that ...