State v. Mannion

• Decision Date: 06 June 1899
• Citation: 57 P. 542,19 Utah 505
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, RESPONDENT v. W. A. MANNION, APPELLANT

57 P. 542

19 Utah 505

THE STATE OF UTAH, RESPONDENT v. W. A. MANNION, APPELLANT

Supreme Court of Utah

June 6, 1899

Appeal from the Third District Court, Salt Lake County, Hon. A. G. Norrell, Judge.

Defendant was convicted of the crime of assault with intent to commit rape.

On the trial, when the prosecuting witness was testifying, the presiding judge ordered defendant from the presence of the witness, and ordered him to take a seat in a part of the court room away from the jury and witness where he could neither hear said witness nor could he see her nor the jury while she was so testifying.

Defendant appeals from the conviction and judgment entered thereon upon the ground that he was absent and out of the presence of the witness when testifying; that he was not personally present at the trial, and that he was not confronted by the witness against him, as provided by Art. 1, Sec. 12, of the constitution of the State of Utah.

Reversed and remanded.

S. H Lewis, Esq., for appellant.

Defendant in case of felony must be present at the trial. (Revised Statutes of Utah Sec. 4811.)

"If the prosecution is for a felony, the defendant must be personally present at the trial. * * * " Bishop's New Criminal Procedure, 271, 273, and cases cited; Lewis v. United States, 146 U.S. 370; Fight v. State, 28 Am. Dec., 638, and note; Roberts v. State, 111 Indiana, 340.

The defendant can not waive his presence, or his rights guaranteed by the constitution. He must be confronted with the witnesses against him. Art. 1, Sec. 12, State Constitution; Maurier v. People, 43 N.Y. p. 1; Lewis v. U.S., 146 U.S. 370; 64 N.C. 74; Bishop's New Criminal Procedure, Sec. 1194.

Counsel's presence does not satisfy the law.

Bishop's New Criminal Procedure, Sec. 271. State v. Jenkins, 84 N.C. 82; State v. Mysick, 38 Kansas, 238.

In removing the prisoner, the judge assumed by that act--and so impressed the jury--that the witness spoke the truth when she said she was afraid.

The jurors are the sole judges of the facts. Sec. 3147, Subdiv. 4, Rev. Stat. of Utah.

Hon. A C. Bishop, Attorney-General, William A. Lee, Deputy Attorney-General, and Ray Van Cott, Esq., for respondent.

The order removing appellant to the place complained of did not deprive him of the right to be personally present at the trial. State v. Laxton, 78 N.C. 570; Thompson on Trials, Vol. 1, Sec. 964; see also 11 Criminal Law Magazine and Reporter, 173, 178.

The constitutional requirement that the accused shall be confronted upon his trial by the witnesses against him, has sole reference to the personal presence of the witnesses for the prosecution. Summons v. The State, 5 Ohio State, 325, 340, 341; Mattox v. United States, 156 U.S. 237, 242-245: Howser v. Commonwealth, 51 Pa. 332, 337, 338; Westfall v. Madison County, 62 Iowa 427, 429; Bell v. State, 28 American Reports, 429; Summons v. The State, supra.

The judge, in ordering the appellant to the position complained of, acted within the sound discretion of the court, and in nowise invaded the province of the jury. State v. Laxton, 78 N.C. 564.

MINER, J. BASKIN, J., concurs. BARTCH, C. J., concurring in the judgment.

OPINION

MINER, J.

The defendant was convicted of the crime of an assault with intent to commit a rape upon one Anna Bell Low. It appears from the record that the prosecutrix upon whom the alleged offense was attempted was about six years old, and when she was sworn, and before giving any testimony, stated in the presence of the court and jury, as follows: "I am afraid to tell, because I am afraid of my papa;" meaning the defendant. The defendant was at this time sitting with his counsel in front of the witness and jury, and the court thereupon, without further testimony or cross-examination of the witness, ordered the defendant to take a seat in the southwest corner of the court room, south of the entrance to the bar, and facing the judge, clerk's bench, and jury box. The prisoner's bench was one foot five inches in height, twenty-seven feet from the jury box, twenty-four feet west from the witness Low, when testifying. The first row of jurors were seated in chairs two and one-half feet high from the floor. The judge and clerk's desks were three feet in height. These were the only objects intervening between the defendant and the witness, except the judge, clerk, and reporter. Witness Low, when she testified, sat in a chair one and one-half feet high, and faced the jury, with her back to the defendant. From the place where the defendant was ordered to sit during the examination of the witness he could not see all of the jurors, neither could he see the witness, nor could he hear any of her testimony when given to the jury. The defendant was represented by counsel, who then and there objected to said order of the court, on the ground that the defendant was not permitted to confront the witnesses against him; which objection was overruled, and the defendant excepted to the ruling of the court.

During all the time the witness was giving her testimony she sat upon a chair facing the jury, with her back to the defendant, as ordered by the court. After the testimony of this witness was finished the defendant was permitted to return to his former seat, within the bar, by his counsel. The witness Low was the only witness who testified to the corpus delicti. Prior to judgment upon the verdict, the defendant, by his counsel, moved the court to set aside the verdict, and to grant a new trial on the ground that the trial was had in the absence of the accused; that the prosecutrix was permitted to testify with her back to the defendant, so that he could not hear her testimony or see her face to face; that the defendant was not permitted to be confronted by the witnesses against him while testifying; that the testimony of the prosecutrix was permitted to go to the jury when the defendant was out of sight and hearing of the witness, to his prejudice; that the court during the trial ordered the defendant out of the presence and hearing of the prosecutrix, when she was giving her testimony against him, and that he was prejudiced by such ruling and order of the court. From the affidavit of the defendant, used on the motion for new trial, it appears, "That on said trial, one Anna Bell Low testified before the jury, on behalf of the State, and against this affiant; that before she so testified, the presiding judge at said trial ordered defendant from the presence of said witness, and ordered him to take a seat in a part of the court room away from the jury and witness; that by order of said court, said defendant took said seat and remained there until said witness had testified in the case against this defendant; that defendant, owing to his being ordered out of the presence of said witness, and away from the jury, by said court, could neither hear, nor did he hear what said witness testified to, nor could he see the said witness while she testified as above stated, nor could he see the jury while she was so testifying; that the defendant then and there objected to the said first order of the said judge, and objected to being absent and out of the presence of said witness, which objection the court overruled, to which ruling of the court affiant excepted."

The court denied the motion, and refused to grant a new trial, to all of which the defendant excepted. Thereupon the defendant was sentenced to imprisonment in the State prison for a period of seven years. From this judgment and conviction the defendant appeals to this court.

Under the statutes of Utah when a defendant in a criminal case is accused of a felony he must be personally present during the trial. This is a right he can not waive. The public has an interest in the life and liberty of an accused person. That which the law requires and makes essential in the trial of persons accused of a felony can not be dispensed with, neither by the consent of the accused, nor by his failure to object to unauthorized methods pursued by those in authority. Rev. Stat. Utah 1898, Sec., 4811; Hopt v. People, 110 U.S. 574, 28 L.Ed. 262, 4 S.Ct. 202; 1 Bish. New Crim. Proc., Secs. 271, 273; 1 Bish. Crim. Proc., Sec. 273; Art. 1, Sec. 12, Const. of Utah; Lewis v. U.S., 146 U.S. 370, 36 L.Ed. 1011, 13 S.Ct. 136; State v. Myrick, 38 Kan. 238, 16 P. 330.

Art. 1, Sec. 12, State Const., provides that "In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to be confronted by the witness against him." * * *

In this case the accused had a right to appear in the case and defend in person and by counsel, and to be confronted by witnesses against him. This constitutional right was denied the accused.

Webster defines confront as follows: 1. To stand facing or in front of; to face. 2. To stand in direct opposition; to oppose. 3. To sit face to face for examination and discovery of the truth; to sit together for comparison; to compare.

Bouvier's Law Dictionary defines confrontation in criminal law to mean "The act by which a witness is brought in the presence of the accused; so that the latter may object to him, if he can, and the former may know and identify the accused, and maintain the truth in his presence. No man can be a witness unless confronted with the accused, except by consent."

In Anderson's Law Dictionary, page 226, the following definition is given: "Confront. To bring face to face. The constitutional provision that the accused shall be 'confronted with the witnesses against him,' means that the witnesses on the part of the State shall be personally present when the accused is on trial; or that they...