State v. Reed

• Citation: 210 P. 756,65 Mont. 51
• Decision Date: 13 November 1922
• Docket Number: 5141.
• Parties: STATE v. REED.
• Court: Montana Supreme Court

210 P. 756

65 Mont. 51

STATE v. REED.

No. 5141.

Supreme Court of Montana

November 13, 1922

Commissioners' Opinion.

Appeal from District Court, Musselshell County; George A. Horkan Judge.

L. E Reed was convicted of murder, and from the judgment of conviction and from order denying his motion for new trial he appeals. Reversed and remanded.

S. P Wilson, of Deer Lodge, for appellant.

W. D. Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

LEIPER C. C.

The defendant (appellant herein) was convicted of the crime of murder. A motion for a new trial, based upon all of the grounds enumerated in the statute, was overruled. The defendant appeals from the judgment of conviction and from the order denying his motion for new trial.

Fourteen specifications of error are set forth in the defendant's brief. We will consider these several specifications under five heads, as follows:

First. Defendant contends that the judgment is erroneous, in that it includes, as a part of the penalty, the payment of the costs incident to the prosecution. After fixing the term of imprisonment the judgment concludes as follows:

"And that he pay the costs of this prosecution."

Defendant's contention must be sustained. This question is not a new one in this jurisdiction. The costs may not be added to a judgment unless provision is made therefor by statute. No such provision is made, and therefore the judgment is erroneous in so far as it relates to the costs. We adhere to the rule announced in the case of State v. Stone, 40 Mont. 88, 105 P. 89.

Second. It is earnestly contended that the record in this case does not show that the defendant was present during the whole of the trial herein; that the record does not disclose that the jury were all present at the time of the return of the verdict; that the record does not show that inquiry was made to ascertain whether or not the verdict rendered was the verdict of the jury; that the record does not disclose that the defendant was present at the time of the rendition of the verdict; and that the judgment is therefore erroneous.

Section 16, article 3, of the Constitution of the state of Montana, provides:

"In all 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; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same."

Section 11931, Rev. Codes 1921, provides:

"The defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant; if his presence is necessary for any purpose, the court may, upon application of the county attorney, by an order or warrant, require the personal attendance of the defendant at the trial."

Section 12018, Rev. Codes 1921, provides in part as follows:

"If charged with a felony, the defendant must, before the verdict is received, appear in person. * * *"

Section 12017, Rev. Codes 1921, provides:

"When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same or another term or session."

Section 12019, Rev. Codes 1921, provides:

"When the jury agree upon a verdict, they must be brought into court and their names called by the clerk, and if all be present, their foreman must deliver their verdict to the court, who may, with their consent, in their presence, correct the same as to matters of form. The court must deliver the verdict to the clerk, who must file the same, and then read the same to the jury, and ask them if the verdict as recorded is their verdict; if all of the jury in the case of a felony, or two-thirds of their number in the case of a misdemeanor, assent thereto, they must be discharged."

What is meant by the word "trial" as used in section 11931, supra, this court, speaking through Mr. Chief Justice Brantley in the case of State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026, says:

"The word 'trial,' when used in connection with criminal proceedings, means proceedings in open court after the pleadings are finished and it is otherwise ready, down to and including the rendition of the verdict."

To the same effect see State v. Koch, 33 Mont. 490, 85 P. 272, 8 Ann. Cas. 804.

The receipt of the verdict is a part of the trial, and under the plain provisions of our statute, the defendant must be present throughout the entire trial. Not only must the defendant be present, but the fact of his presence must be made to appear from the record. Neither may the defendant waive this right to be present. This court, speaking through Mr. Justice Holloway, in the case of State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann. Cas. 398, among other things, says:

"The interest of the state in the life of every citizen extends to one who is on trial for a capital offense, and therefore it is a principle of law, recognized everywhere, that after indictment returned or information filed, nothing shall be done by the court in the case in the absence of the accused. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011. And the courts are quite unanimous in holding that the right of the accused to be present at all times during his trial is one which the state does not permit to be waived. The jurisdiction of the court to try the accused is derived from the law, and the consent of the accused cannot confer jurisdiction if the court does not have it; and therefore the right of the defendant to be tried by a court having jurisdiction is one which is not waived by failure to make objection at the trial. It is to rights of the character of these that the principle quoted above is applicable. In other words, the rights guaranteed to one accused of crime fall naturally into two classes: (a) Those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be."

And in the same case, this court quotes with approval the language used by the Supreme Court of the United States in the case of Lewis v. United States, supra, as follows:

"And it appears to be well settled that, where the personal presence [of the defendant] is necessary in point of law, the record must show the fact."

Again, in the case of State v. De Lea, 36 Mont. 531, 93 P. 814, this court, speaking through Mr. Justice Holloway, says:

"The Penal Code, section 2141, provides that the defendant, if charged with a felony, must be present when the verdict is received; and it is generally held, and we think correctly, that this fact must affirmatively appear."

To the same effect is State v. Hall, 55 Mont. 182, 175 P. 267.

The rule that the presence of the defendant must appear from the record is thus stated in Corpus Juris, vol. 16, p. 814:

"As a general rule the presence of defendant during a trial for felony must appear from the record, and generally such presence cannot be presumed; but if the record shows defendant's presence at the commencement or at any other stage of the trial, his presence during subsequent stages thereof will be presumed, in the absence of evidence to the contrary, although the fact is not formally stated. A failure of the record to show the personal presence of defendant during the trial will work a reversal of the judgment of conviction."

This text is supported by numerous authorities. To the same effect see Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377; Southerland v. State, 176 Ind. 493, 96 N.E. 583; Humphrey v. State, 3 Okl. Cr. 504, 106 P. 978, 139 Am. St. Rep. 972; State v. Wood, 17 Iowa, 18; Smith v. State, 60 Ga. 430; Grimm v. People, 14 Mich. 300; Stephens v. People, 19 N.Y. 549; Fight v. State, 28 Am. Dec. 631.

What is said by the court in the case of Peters v. United States, 94 F. 138, 36 C. C. A. 116, in relation to the record which ought to be kept is so peculiarly applicable herein that we quote therefrom as follows:

"No principle of law, relating to criminal procedure, is better settled than that, in felony cases, nothing should be done in the absence of the prisoner. It is his unquestioned right 'to be confronted with his accusers and witnesses.' He has the legal right to be present when the jury are hearing his case, and at all times during the proceeding of the trial, when anything is done which in any manner affects his right; and, as a general rule, it is undoubtedly true that, when his personal presence is necessary to protect his rights, the record ought to show the fact of his presence. * * * It is the duty of clerks to see that the record speaks the truth concerning this fact as well as others occurring during the trial. A strict observance of these rules by the ministerial officers charged with this duty would certainly tend to relieve the courts of much trouble and annoyance. But what must the record show? What entry must be made? In general terms, it may be stated that the minutes of the court should affirmatively show everything which is essential to the validity of a criminal trial. The record of each day should show the presence of the court and its officers, of the respective attorneys, of the defendant, and of the jury, and

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