State v. Grove

• Citation: 74 W.Va. 702,82 S.E. 1019
• Court: Supreme Court of West Virginia
• Decision Date: 15 September 1914
• Parties: STATE. v. GROVE.

82 S.E. 1019

(74 W.Va. 702)

STATE.

v.GROVE.

Supreme Court of Appeals of West Virginia.

Sept. 15, 1914.

(Syllabus by the Court.)

Error to Circuit Court, Greenbrier County.

Paxton Grove was convicted of obtaining property by false pretenses with intent to defraud, and brings error. Reversed, and new trial awarded.

T. N. Read, of Hinton, for plaintiff in error.

A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.

ROBINSON, J. Paxton Grove, convicted upon an indictment charging him with feloniously obtaining the property of another by false pretences with intent to defraud, has appealed. Only one of his assignments of error is meritorious. To that point alone we shall direct discussion.

By a bill of exceptions the following appears:

"After the verdict of the jury had been rendered herein, and the prisoner had been remanded to jail, and while the motion of the accused to set aside the said verdict and grant him a new trial was being argued before the court, the prisoner was not present in court at any time during said argument, or while said motions were being argued by either the counsel for the accused or for the State, though' the fact of said prisoner's absence was at the time called to the attention of the court, the said prisoner being during said argument and time confined in the jail of the said county."

Plainly, by the long line of decisions binding us, the procedure recited in this bill of exceptions constituted reversible error. It is unnecessary to cite the cases. They are known to every lawyer.

The statute stands as it has stood in the Virginias for years:

"A person indicted for felony shall be personally present during the trial therefor." Code 1913, ch. 159, sec. 2 (sec. 5578).

The right of one under indictment for a felony to be personally present at every stageof his trial cannot be denied him. The statute has always been viewed as absolutely mandatory, even when it could be seen that no harm has come from its non-observance, Notwithstanding such strict view of the right given, no Legislature has seen fit to liberalize the rule. Quite apparently our lawmakers continue to sanction the policy of the original enactment as strictly interpreted and enforced by the courts. Such strict interpretation and enforcement in some instances seems unnecessarily technical. Particularly is this so when in a case it appears affiirmatively that the accused could not have been prejudiced by a slight disregard of the statute. But the right of the accused in a felony case to be personally present at all times during his trial has ever been deemed rather an inalienable one. The province for change properly lies in the Legislature, not in this court.

The rule applies not simply before verdict, but as well thereafter until judgment. In State v. Parsons, 39 W. Va. 464, 19 S. E. 876, it was held:

"In felony cases the accused must be present in his own proper person from the inception of the trial upon the indictment to the final judgment inclusive, when anything is done affecting him; and the record must show his presence. He must be present when action is had on a motion for a new trial."

It is certainly a plain violation of the statute to allow a motion for a new trial, one which so vitally affects the interests of the accused, to be argued pro and con in his absence.

The attorney-general, however, in his brief claims that the rule does not apply in this case. He says the defendant, though proceeded against for a felony, was found guilty only of a misdemeanor. In other words he would say that after the verdict the accused was no more on trial for a felony. How this would be if the verdict was really a finding of misdemeanor, we need not say. For, under the law, the verdict of guilty returned against the defendant herein can be rightly...