State v. James

• Decision Date: 30 June 1921
• Docket Number: 10657.
• Parties: STATE v. JAMES.
• Court: South Carolina Supreme Court

107 S.E. 907

116 S.C. 243

STATE v. JAMES.

No. 10657.

Supreme Court of South Carolina

June 30, 1921

Appeal from General Sessions Circuit Court of Pickens County; J. W De Vore, Judge.

W. C James was convicted of manslaughter, and he appeals. Reversed, and new trial granted.

The exceptions of defendant were as follows:

(1) That the presiding judge erred in refusing the motion for new trial, for the reason that it appears from the record that after the jury had been charged, and sent to their room for deliberations, the defendant was taken from the courtroom to the jail, and that during the absence of the defendant from the courtroom the jury was permitted to come out into the courtroom and to ask for further instructions in reference to the law of self-defense, and thereupon the presiding judge did charge the jury the law of self-defense, and then the jury returned to their room, and after a brief deliberation returned to the courtroom announcing that they had agreed upon a verdict. It is respectfully submitted that this was a material and essential step in the progress of the trial, and that the defendant was absent against his will and without his consent, and he was thus denied his constitutional right to be present during the trial.

(2) That the presiding judge erred in not granting the motion for a new trial, for the reason that the mere presence of the attorney for the defendant could not amount to a waiver of the defendant's right to be present, for the reason that the court did not notice that the defendant was absent, and his attorney did not undertake affirmatively to waive his absence, and the defendant had no means of knowing, or waiving in advance, his right to be present during every material step in the progress of the trial.

(3) That the presiding judge erred in refusing the motion for new trial, because to charge the jury as to the law of self-defense at the request of the jury and in the absence of the defendant, without his request and without his waiver would be to deprive the defendant of his constitutional right to be present during every material step in the progress of the trial, and if the court can deny to the defendant the right to be present during a part of the trial, then it could finally deny the defendant the right to be present at all during the trial, and it is respectfully submitted that to charge a part of the law is just as material as to charge all of the law, and the mere fact that the court directed the stenographer to read the charge which the court had delivered in the absence of the prisoner could not cure the defect, for the reason that the jury had already agreed upon a verdict, and was sitting in the courtroom hearing the charge read, with the verdict already written and in the hands of the foreman, and such proceeding was a vain and barren effort to cure the error which had been committed.

J. J. McSwain, of Greenville, and Sam B. Craig and Carey & Carey, all of Pickens, for appellant.

J. Robt. Martin, of Greenville, for the State.

WATTS J.

This is an appeal from an order of Judge De Vore refusing to grant a new trial. The following...