State ex rel. Shetsky v. Utecht

• Citation: 36 N.W.2d 126,228 Minn. 44
• Decision Date: 21 February 1949
• Docket Number: 34839.
• Parties: STATE ex rel. SHETSKY v. UTECHT, Warden.
• Court: Minnesota Supreme Court

36 N.W.2d 126

228 Minn. 44

STATE ex rel. SHETSKY
v.
UTECHT, Warden.

No. 34839.

Supreme Court of Minnesota

February 21, 1949

Syllabus by the Court.

1. On the petition, return, reply, and stipulation relative to evidence taken below in a habeas corpus proceeding, the question before us is whether the absence of relator as the accused from his trial for murder in the district court was voluntary or involuntary.

2. In a prosecution for a felony, the accused has the right to be present in person at all stages of the trial, from arraignment to and including the pronouncement of sentence. If after arraignment, plea, and the commencement of the trial in his presence he voluntarily flees the court, he thereby waives his right to be present at the further proceedings up to and including the rendition of the verdict.

3. The absence of the accused from the court, voluntarily or involuntarily, [36 N.W.2d 127] when sentence is pronounced in such a case, results in an illegal sentence without due process of law, requiring a resentence when his presence is secured.

Appeal from District Court, Washington County; Alfred P. Stolberg, Judge.

[228 Minn. 45] Carl W. Cummins and Wm. C. Green, both of St. Paul, for appellant.

J. A. A. Burnquist, Atty. Gen., Chas. E. Houston, Asst. Atty. Gen., Victor J. Michaelson, Sp. Asst. Atty. Gen., and Michael J. Dillon, Co. Atty., of Minneapolis, for respondent.

LORING, Chief Justice.

This case comes here on appeal from the discharge of a writ of habeas corpus by the district court. Under M.S.A. s 589.30, it is tried in this court de novo.

Rubin Shetsky, the relator, was indicted in Hennepin county August 1, 1945, for the murder of Albert Schneider, which occurred July 27, 1945. He was admitted to bail, and the case was tried in the district court for Hennepin county, commencing September 10, 1945. The trial proceeded until September 21, 1945, with the presence of the accused. On that day, the judge recessed the trial until the following Monday morning, September 24, 1945. While the court was in recess over the week end, accused absented himself from the county and the state, and he was not again within the state, so far as the record shows, until he was apprehended in California [228 Minn. 46] in March 1947 and returned to custody here. He was apprehended by the Federal Bureau of Investigation and turned over to the state authorities.

In the meantime, his trial, on September 24, 1945, and thereafter, was recessed from time to time until it became apparent to the court that he would not be immediately apprehended. The trial was then resumed October 15, 1945, in the absence of accused, but with his counsel present and taking part. The jury returned a verdict of guilty of murder in the second degree, which was accepted by the court October 17, 1945. June 6, 1946, while accused was still absent, the court adjudged him guilty of murder in the second degree and sentenced him to the state prison at Stillwater for the term of his natural life.

March 18, 1948, Shetsky petitioned the district court for Washington county for a writ of habeas corpus. His petition was based upon the theory that his absence from the trial and from the state was involuntary and that under fear of his life he had absented himself from the trial and further proceedings. His petition was traversed by respondent. Evidence was taken upon this issue, and the trial court found that his absence was voluntary. When the case came here on appeal, the parties entered into a stipulation that the case be submitted to this court upon the testimony taken in the district court, which--'shall be received and used by the parties in this proceeding as the testimony in this case, and that said case shall be submitted to the court upon such evidence and all exhibits offered and received, and the petition, return and reply or traverse thereto.' The transcript was stipulated as the testimony taken below, and it was agreed: 'That the making of this stipulation is without prejudice to the rights of the appellant or respondent to object to any part of the testimony.'

1. Relator sought to eliminate the use of the testimony taken below upon the theory that the judgment of the trial court, which sentenced him, merely recited that sentence was imposed upon [228 Minn. 47] him while he was absent, and that the question of whether or not that absence was voluntary could not, as against the recital in the judgment, be raised. As we regard the record, respondent was not so precluded by the recital, which does not determine whether the absence was voluntary or involuntary. That question was put in issue by the petition and return. The evidence taken before [36 N.W.2d 128] the district court in the proceeding was properly before us. Since the trial in this court is de novo, we must draw our own conclusions from the evidence. We conclude from that evidence that the absence of accused was entirely voluntary, any evidence to the contrary being impeached by his own statements to the member of the staff of the Federal Bureau of Investigation who apprehended him.

Such being the case, the question presented to this court is whether accused, by his voluntary absence, might waive his statutory right to be present at all stages of the trial, including the imposition of the sentence.

2. At common law, the right of an accused to be present at certain stages of the trial was insured to him. In the criminal procedure of early English law, these rights were vital to defendants and were carefully guarded by the court, perhaps, for the reason that capital punishment was imposed by law for what, in these days, would be regarded as comparatively trivial offenses. ^[1]

In more recent times, the question has arisen as to whether voluntary absence of an accused, who was free on bail, amounted to a waiver of his rights to be present at all stages of the trial. At the present time, the courts of the various states almost unanimously hold that the right to be present subsequent to arraignment and [228 Minn. 48] plea and after the commencement of the trial in his presence and prior to the imposition of sentence may be waived by the voluntary absence of the accused. In this state, while the statutes, M.S.A. ss 630.01 and 631.01, insure the right of the accused to be present, it was held in State v. Gorman, 113 Minn. 401, 129 N.W. 589, 32 L.R.A.,N.S., 306, that the voluntary absence of the accused at the time of the return and reception of the verdict was a waiver of his right to be present. In that case, defendant was free on bail, and after the court waited a reasonable time for him to be present the verdict was received in his absence. This court said, 113 Minn. 403, 129 N.W. 589:

'Was it error to receive the verdict in the absence of the defendant in view of the exceptional circumstances under which it was received? This is an important question, and one of first impression in this state.

'On a trial for a felony the defendant shall be personally present. R.L.1905, s 5358 (M.S.A. s 631.01). The reception of the verdict in such a case is a material part of the trial to the defendant; for he is entitled, on request, to have the jury polled. Section 5373 (M.S.A. s 631.16). If the defendant be in custody and is not personally present when the verdict is received it is reversible error; for the court, and not he, in such a case commands his jailer. Where, however, he has been released on bail, he orders his own movements outside of the courtroom. Can he in such a case Willfully absent and conceal himself, and then urge that a verdict, received in open court in his absence, after waiting and searching 18 hours for him after the jury had agreed, is void because he was not present when it...