State v. Thompson

• Decision Date: 21 April 1928
• Court: North Dakota Supreme Court

219 N.W. 218

56 N.D. 716

STATE OF NORTH DAKOTA, Respondent, v. E. A. THOMPSON, Appellant

Supreme Court of North Dakota

April 21, 1928

Appeal from the District Court of Mountrail County, North Dakota Lowe, J.

Affirmed.

R. E Swendseid, for appellant.

"It appears, however, that the majority rule is that the unconstitutional provision, and the general statutory provision embodied in § 10,771, can be waived by the defendant by being voluntarily absent." Diaz v United States, 223 U.S. 442, Ann. Cas. 1913C, 1138.

"The same principles apply as in civil cases in granting a new trial for accident or surprise; and where, notwithstanding the exercise of due diligence, defendant is prevented through surprise from having a fair trial, a new trial will be granted him. And where it appears that the jury did not have the real cases before them, but acted on an erroneous assumption as to the facts, which may have been material, a new trial should be granted." 16 C. J. 1126.

"It is essential, therefore, that the circumstances taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis." Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711.

George F. Shafer, Attorney General, and C. N. Cottingham State's Attorney, for respondent.

"Most of the courts, however, have held that the defendant may waive his right to be present when the case is not capital; that he does so if, having been released on bail, or absconded or is voluntarily absent after the arraignment and plea, and that in such case the trial may proceed and the verdict received notwithstanding his absence." 16 C. J. 817.

"But it has been repeatedly held upon careful consideration, while it is the right of the defendant indicted for felony to be present when the verdict is rendered as well as during the early part of the trial; and while it is irregular and improper to begin trial in such case without the presence of the accused, yet, if he is on bail and is present at the commencement of the trial, and afterwards voluntarily departs without leave, and is absent when the verdict is returned, he may be defaulted and verdict which will be binding upon him may be taken in his absence." Com. v. McCarthy, 163 Mass. 458, 40 N.E. 766.

"A defendant who voluntarily absents himself from his trial, whose absence is not enforced, whose opportunity for attendance is not restricted, cannot be permitted to complain of the consequences of his own wrong." 2 Hyatt, Trials, 1054; 5 L.R.A. 832.

"Abuse of discretion which implies a plain and manifest error of judgment, lays a case open to review and reversal, under the settled rules applicable to review of discretionary matter. But in the absence of such abuse the appellate court seldom interferes with the disposition of a motion for a new trial, whether a motion was based upon alleged irregularities or improprieties of practice and conduct of the trial such as insufficiency of the evidence to sustain the verdict." 17 C. J. 248; State v. Howser, 12 N.D. 495, 98 N.W. 392.

"The jury is the sole judge of the facts in a criminal case, and where the testimony is such that reasonable minds may believe the charge alleged in the information has been proved, the verdict of the jury is conclusive as to its sufficiency." State v. Foster, 14 N.D. 561, 105 N.W. 938; State v. Mozinski, 49 N.D. 228, 191 N.W. 346; State v. Young, 55 N.D. 194, 212 N.W. 858.

BURR, J. NUESSLE, Ch. J., and BURKE, BIRDZELL, and CHRISTIANSON, JJ., concur.

OPINION

BURR, J.

The defendant was indicted by the grand jury on a charge of grand larceny and admitted to bail. On the trial in the district court on July 9, 1927 he was found guilty of the felony charged. Judgment was pronounced and sentence imposed on July 14, 1927 and the defendant made a motion for a new trial on the same day, which motion was denied. The defendant appeals from the judgment and from the order denying his motion for a new trial.

There are four specifications of error, being substantially the same as the grounds set forth in the motion for a new trial. The first specification alleges that the court erred in receiving the verdict in the absence of the defendant. The second is based on the refusal of the court to "grant defendant a new trial on the grounds of inadvertence, surprise and excusable neglect." The third and fourth are based on the allegation that the verdict is contrary to the law and that the evidence is not sufficient to justify the verdict. With reference to the first specification of error, the record shows: that when defendant was held to answer to the district court he was admitted to bail and from then until now is out on bail; on the arraignment in district court he was present in person with his counsel and entered a plea of not guilty; that he was present during the taking of testimony, after intermissions and recesses, when the trial was resumed, when the jury was charged, and when it retired for deliberation. The clerk's minutes and the record made by the presiding judge show the jury retired for deliberation about 1:30 P. M. on July 9, 1927 and about 2 P. M. on the same day announced they had arrived at a verdict. The defendant did not remain in the court room after the jury retired.

We quote the record:

"The jury in the above entitled action having arrived at a verdict at two o'clock P. M., and bailiffs and deputy sheriffs having been dispatched to find the defendant and after going all over the city of Stanley they were unable to locate him, and it being now nearly three o'clock, and it appearing to the court that the defendant has wilfully absented himself from the court, it is ordered that the jury return their verdict in the absence of the defendant."

The minutes of the clerk show the "jury returned at 2:40 o'clock P. M. and rendered a verdict of guilty which was read in open court with the defendant absent." Thus it is clear that when the court makes the record that the time was "now nearly 3 o'clock" and the clerk that it was 2:40 P. M. the court waited at least forty minutes while bailiffs and deputy sheriffs were searching for the defendant in Stanley. Shortly after the verdict was received, and while the jurymen were leaving the court room, the defendant strolled in. His excuse for absence was not stated at that time but is set up in an affidavit which he made on July 14, 1927 in support of his motion for a new trial. This affidavit states, with reference to his absence:

"That as soon as the case had been submitted to the jury and the jury retired to the jury room affiant left the court house and retired to a friend's residence, Mr. A. Hettletvedt in Stanley, N. Dak. for rest; that he returned to the court house in about an hour and met the jury that had tried him as he entered the said court house; that neither affiant, his attorney or anyone else was present in court in affiant's behalf at the time that the verdict was received; that affiant was anxious to and did desire to be present in the court at the time the verdict was received."

There is no claim on the part of the defendant nor is there anything in the record to indicate that the defendant left word with the court, the sheriff, bailiff, or any other official, where he could be found or that any of them knew where he was. The record is also silent as to whether the court had adjourned for noon but defendant does not claim he went out to lunch. The time would indicate that the case was given to the jury after dinner. It is the claim of the defendant that his constitutional right to be present at the reception of the verdict was violated by the court and for this reason he should be granted a new trial. To emphasize his rights the defendant cites § 13 of article 1 of the Constitution of the state and §§ 10,709, 10,771, 10,877 of the Compiled Laws 1913. The constitutional provision says:

"In criminal prosecutions in any court whatever the party accused shall have the right to a speedy and public trial, . . . and to appear and defend in person and with counsel."

He had a speedy trial. The indictment was found on the first day of June 1927. The next day it was presented and filed in open court. The defendant and his counsel entered into a written stipulation with the state on June 6, 1927 permitting him to appear for trial at the next regular or special term of the court and therein he agreed to then enter his plea and "that if said plea is 'not guilty' the defendant will be prepared to immediately go to trial upon said plea; that he will not demur to said indictment or file any application or motion for change of venue or continuance."

The next term was held in July of the same year. The defendant was arraigned, entered a plea of not guilty and on the 9th day of July the jury was impanelled, and the trial began forthwith. The case did not consume more than half a day and the verdict of guilty was returned the same afternoon. Sentence was pronounced July 14, 1927. The defendant had a public trial of which there is no complaint. He was present in person and with his counsel from the time the case was called until after the jury retired to deliberate.

Section 10,709 of the Code provides for the personal appearance of the defendant when arraigned on a felony. This requirement was met. Section 10,771 says:

"If the . . . indictment is for a felony the defendant must be personally present at the trial."

He was there with his counsel who examined witnesses, interposed objections and addressed the jury on behalf of the defendant. Section 10,877 says:

"If the . . . indictment is for a felony, the defendant must, before the verdict is received appear in person."

This is the right which defendant says was denied him. It...