State v. Louie Howerton

• Decision Date: 01 December 1925
• Docket Number: (No. 5188)
• Citation: 100 W.Va. 501
• Court: West Virginia Supreme Court
• Parties: State v. Louie Howerton

100 W.Va. 501

State

v.Louie Howerton

(No. 5188)

Supreme Court of Appeals of West Virginia.

Submitted October 13, 1925.

Decided December 1, 1925.

1. Criminal Law In Felony Cases, Accused Musi be Present in Person From Beginning of Trial to Final Judgment When Anything is Done Affecting Him.

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. (p. 502.)

(Criminal Law, 16 C., T. § 3 051.)

2. Same Absence of Accused When Instructions Are Argued and Acted on by Court Held Reversible Error.

Under this rule, the prisoner should be present when the instructions are argued and acted upon by the court; and his absence at such time will constitute reversible error, (p. 504.)

(Criminal Law, 16 C. J. § 2067; 17 C. J. § 3750 [Anno.].)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Mercer County. Louie Howerton was convicted of murder in the second degree, and he brings error.

Reversed and remanded.

James Damron, and John M. McGrath, for plaintiff in error.

Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Litz, Judge:

The defendant was found guilty, by a jury, of murder in the second degree. To the judgment of the court, upon the verdict of conviction, imposing a sentence of sixteen years confinement in the penitentiary he prosecutes this writ.

At the trial the numerous instructions offered by the State and the defendant were argued and acted upon by the trial court in the absence of the defendant. This is the sole ground of error.

Section 2, Chapter 159, Code, provides:

"A person indicted for felony shall be personally present during the trial therefor".

The statute has been construed and applied with great strictness in favor of the accused in numerous cases by this Court; probably the most extreme being that of State v. Sheppard, 49 W. Va. 582, wherein the asking and answering of two immaterial questions in the absence of the defendant, during the examination of a witness, was held to constitute reversible error, although the questions and answers were immediately repeated in the presence of the accused.

State v. Parsons, 39 W. Va. 464, holding that the prisoner must be present when action is had on a motion for a new trial, lays down the rule, in accordance with many other decisions of this Court, that 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 that the record must show his presence. We quote from the opinion, written by Judge Brannon, in that case:

"The second ground on which the accused asks a new trial is that he was absent when the subject of a new trial was being considered. The Code in Section 2, c.159 as well as the common-law requires that 'a person indicted for felony shall be personally present during the trial therefor'. What does the word 'trial' here used mean? Does it mean merely trial before the jury? Must he be present when a motion for a new trial is pending? Some authorities hold that he need not be; but the great weight of authority is that he must be so present when any step affecting him is taken from arraignment to judgment inclusive. Sperry's Case, 9 Leigh, 623; Younger's Case, 2 W. Va. 579; State v. Conkle, 16 W. Va. 736; State v. Sutfin, 22 W. Va. 771; State v. Greer, Id. 801; Jackson's Case, 19 Gratt. 656; Lawrence's Case, 30 Gratt. 845; Bond's Case, 83 Va. 581, 3 S. E. Rep. 149.

"In Honaker's Case, 13 Gratt. 763, it is pointedly held that the accused must be present, during action on a motion for a new trial; so in Bond's Case, 83 Ya. 581, 3 S. E. 149. The record-book must always show the prisoner's presence."

Reversing the judgment of the lower court on the ground that a motion for a new trial had been argued while the defendant was absent, in State v. Grove, 74 Yv. Ya. 702, it is said:

"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, Chapter 159, Section 2. The right of one under indictment for a felony to be personally present at every stage of 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...