State v. Aikers

• Decision Date: 05 December 1935
• Docket Number: 5722
• Citation: 51 P.2d 1052,87 Utah 507
• Court: Utah Supreme Court
• Parties: STATE v. AIKERS et al

51 P.2d 1052

87 Utah 507

STATE v. AIKERS et al

No. 5722

Supreme Court of Utah

December 5, 1935

Appeal from District Court, Third District, Salt Lake County; J. W McKinney, Judge.

Earl J Aikers and William Vallee were convicted of robbery, and they appeal.

AFFIRMED.

K. K Steffensen, of Salt Lake City, for appellants.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

FOLLAND, Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

FOLLAND, Justice.

The defendants were convicted of robbery, and appeal. The evidence discloses that two men entered the store of David Newman in Salt Lake City on the evening of January 26, 1935, at about 8:30 o'clock. One of the men held a gun on Newman and his daughter, the only other persons present in the store, while the other man took money from the cash register. The defendants were arrested at a Salt Lake Hotel on or about March 25, 1935. Both Newman and his daughter identified the defendants as the men who perpetrated the robbery. They testified that Aikers had come to the store about two hours prior to the robbery and made inquiry as to some person in the neighborhood whom he wanted to locate; that when the two men entered the store at the time of the robbery, Newman said to Aikers, "Did you find your friend?" A woman residing at a home next to the store also identified Aikers as a person who called at her house, making the same sort of inquiry at about the same time as that testified to by the Newmans. A revolver was found under the mattress in the room occupied by Vallee when he was arrested. The Newmans testified this gun was similar to the one held by Aikers at the time of the robbery. It was introduced in evidence. The defense was an alibi. Vallee testified, but Aikers did not. The defendants introduced evidence tending to prove they were at the Roma Inn, located in quite a different section of the city from that of the Newman store, at the time of the alleged robbery. The state's rebuttal tended to impeach the effect of defendants' alibi testimony.

The errors relied on for reversal, which are assigned jointly and some of them singly, are: That (1) the jury was impaneled in the defendant Aikers' absence in violation of statute and of his constitutional right to be present at the trial, and also the right in his codefendant, Vallee, to have him present to join in the challenges to the jurors; (2) errors in the admission and rejection of evidence; (3) the giving of oral instructions to the jury without consent of defendants; and (4) refusal of the court to dismiss the case at the time the state rested.

The first assigned error is the most important and troublesome problem in the case. The case was set with others for a date certain. The defendants were to be tried together, as no segregation had been requested. The case ahead of this one on the calendar took a longer time than had been anticipated. Both defendants were at liberty on bail. Defendants and their attorney and witnesses had been ready for several days, and were waiting for trial. The case was called for trial at 10 o'clock a. m. on April 8, 1935. The defendant Vallee and the attorney for both defendants were present at 10 o'clock, but Aikers was absent; he having left his hotel that morning before word was received that the case would be called for trial. He appeared in court, however, at 2 o'clock, at which time the examination of the jurors was practically completed, but the jury was not yet sworn to try the case. The record shows the following:

"Mr. Pearce: (At 10:00 o'clock A. M.) I think we can start. The only difficulty is, we have been waiting three weeks. Mr. Aikers will be here at noon. I think we can go ahead and impanel the jury and we get him in the noon hour.

"The Court: What about stipulating the rights of the defendant?

"Mr. Pearce: I think we can stipulate while he is here.

"The Court: I don't think a stipulation of the attorneys would amount to anything, unless he, himself, agrees to it, and there might be some question in that. Can the attorney stipulate the constitutional rights of the defendant?

"Mr. Rawlings: My thought was probably when he comes this afternoon we could have him put a stipulation in the record that the jury was impaneled in his absence, and he had no objection. There might be some question--

"The Court: That is too bad. Where is he?

"Mr. Pearce: He is some place down town.

"The Court: Is he out on bail?

"Mr. Pearce: Yes, the bondsmen are right after him. They went over to the hotel. Of course, I called the hotel immediately after Mr. Rawlings called me, and they said he had just gone over to town. I called the bondsmen, and they went right out, trying to find him, and they may find him momentarily. He has been ready and had his witnesses for three weeks. You have been busy on the Smith case.

"The Court: That took us about fifteen days, to try that case, which is one reason the calendar has gone a little behind in the meantime. Well, if the District Attorney wants to take the chance.

"Mr. Rawlings: If he raises any objection on counsel's stipulation, it would be a matter of trying him again and we would not be out anything.

"The Court: The charge is robbery. It is a serious charge. These delays are very annoying. Well, you may proceed if you think it is all right.

"Mr. Rawlings: Let us proceed with this one case, anyway, then, when you get him here, your Honor--

"Mr. Pearce: His car is parked in front of the hotel. He is not very far. He is some place over in town, I think.

"The Court: It would be a rather embarrassing situation to go ahead and impanel the jury, and he could not be found this afternoon.

"Mr. Rawlings: We can proceed with the one defendant.

"The Court: Yes, you can do that.

"Mr. Rawlings: If I was certain he would be here at two o'clock.

"Mr. Pearce: He told the landlord he would be back at noon. They may find him before that.

"Mr. Rawlings: They are over looking for him. I think the safest thing is to proceed now, and if there is any question, we will go ahead with Vallee.

"The Court: Which one is it that is absent?

"Mr. Pearce: Aikers.

"The Court: He is the absent one?

"Mr. Pearce: Yes. * * *"

At 2:00 o'clock P. M., and before final acceptance of the jurors, the following proceedings were had:

"Mr. Rawlings: May the record show that the defendant Earl J. Aikers is now in the court room with his counsel, and that as yet the jury has not been accepted, but that they have been questioned, and that the defendant Earl J. Aikers is now given the opportunity to make any challenges that he may see fit, to the jury, or to the final acceptance of them.

"The Court: Do you desire to make any, Mr. Pearce?

"Mr. Pearce: No, we don't have any challenges.

"Mr. Rawlings: May the record further show that the defendant raises no objection to the fact that he was not personally present during the preliminary examination of the venire-men. That is correct?

"Mr. Pearce: That is correct.

"The Court: Is that correct, Mr. Aikers?

"The Defendant (Earl J. Aikers): Yes.

"Mr. Rawlings: You are now waiving any objection to proceeding in your absence, so far as the preliminary examination is concerned?

"Mr. Aikers: Yes.

"Mr. Rawlings: Let the record show he answered in the affirmative.

"The Court: Let the record so show. I believe that is all that is necessary. Will the clerk please swear the jury to try the case."

The record shows "further questioning of the jury" in the presence of both defendants after court convened at 2 o'clock.

It is contended that the trial as to Aikers was conducted during the first half day in his absence in violation of the statutory provision, 105-28-3, R. S. Utah 1933, which provides, "If the prosecution is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor, the trial may be had in the absence of the defendant"; and also in violation of his constitutional right to appear and defend in person and by counsel. Article 1, § 12, Const. of Utah. The right to be present at all stages of the trial is claimed to be of such an absolute character that it cannot be waived either by counsel or the defendant, and when the court permits the trial to proceed in the absence of the defendant the judgment of conviction must be set aside. There is no doubt but that the constitutional right to appear and defend in person and by counsel is a sacred right of one accused of crime which may not be infringed or frittered away, and is one which may not be denied by a court or be waived by counsel. Schafer v. State, 118 Tex. Crim. 500, 40 S.W.2d 147; State v. Hutchinson, 163 La. 146, 111 So 656. Whether such right may be waived by the defendant personally is a question on which the authorities are divided. 8 R. C. L. 69, 94. The great weight of authority is that the defendant may, by conduct or in words, waive such right, and that he may not take advantage of his voluntary absence, if he is at liberty on bail, during some part of the proceedings at which it is his duty as well as his right to be in attendance. A great many of the cases where this question arises are cases where the defendant, being at liberty on bail has absented himself from the trial, usually without consent of the court, while the trial was in progress or after the submission of the case to the jury, and would not be present when the jury returned for further instruction or information or to render its verdict. The decisions turn on the question of whether the defendant was voluntarily absent at such times. In such cases it is generally held that the defendant cannot by his voluntary act invalidate the proceedings. 16 C....