State v. Schasker
| Decision Date | 18 February 1931 |
| Docket Number | Cr. No. 61. |
| Parties | STATE v. SCHASKER. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In a prosecution for a felony the defendant must be personally present at the whole of the trial, and where it appears that after a jury has retired it is called in and by order of the court, the court stenographer reads to the jury evidence from his notes taken at the trial in the absence of the defendant and his attorney and without their knowledge and consent, it is prejudicial error and a new trial must be granted.
Appeal from District Court, Adams County; F. T. Lembke, Judge.
Fred Schasker was convicted of grand larceny, and he appeals.
Reversed, and new trial granted.Chas. M. Dunn, of Hettinger, and Jacobsen & Murray, of Mott, for appellant.
James Morris, Atty. Gen., and Paul W. Boehm, State's Atty., of Hettinger, for the State.
This is an appeal from a judgment of conviction from an order denying defendant's motion in arrest of judgment, and from an order denying defendant's motion for a new trial.
At the January, 1930, term of the district court of Adams county, the defendant, Fred Schasker, was brought to trial on an information charging him with grand larceny. The testimony was taken, the jury was instructed and retired for a consideration of the evidence, and immediately thereafter the court adjourned until 9 o'clock the following morning. The record shows that on the next morning the following proceedings were had, viz.:
“At 9:30 A. M., January 30th, 1930, Court having been previously called to order, the bailiff informed the Court that the jury would like to have some of the testimony read to them, the Court thereupon ordered that the plaintiff conduct the Jury into Court.
The Jury was brought into Court and on roll call all members of the jury were present.
By the Court: Have you agreed upon a verdict, Members of the Jury?
The Jury: No, sir.
By the Court: Is there anything the Court can help you out on?
The Jury: The main difficulty seems to be as to the brands that Mr. Clement testified to while on the witness stand, that is the part we would like to have explained to us. There is some misunderstanding as to what Mr. Clement testified to and we would like to have that part of the testimony read with reference to brands if it is possible.
By the Court: Very well, we will have the Court Reporter read that part of the testimony to you. * * *
The Court Reporter then read the following testimony, part of the direct examination of the witness, William Clement. The cross examination was not read. When the last question and answer herein was read by the Reporter the Jury informed the Court that was enough, that they had the desired information. The jury thereupon retired for further deliberation.”
The court stenographer read to the jury, from his notes, the testimony in chief of the witness William Clement, which testimony when transcribed made ten pages in...
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...¶¶ 9-10, 578 N.W.2d 559; Ash, 526 N.W.2d at 480-81; Zimmerman, 524 N.W.2d at 117; Smuda, 419 N.W.2d at 167-68; State v. Schasker, 60 N.D. 462, 464, 235 N.W. 345, 346 (1931). "Because of the constitutional underpinnings of defendant's right to be present" during all stages of a criminal tria......
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State v. Aikers
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City of Mandan v. Baer
...has long recognized the constitutional right of a defendant to be personally present during the whole of a trial. State v. Schasker, 60 N.D. 462, 235 N.W. 345 (N.D.1931) (calling in jury after retirement and allowing court stenographer to read evidence from notes in absence of defendant in ......