State v. Thompson, 8.

• Decision Date: 21 April 1928
• Docket Number: No. 8.,8.
• Citation: 219 N.W. 218,56 N.D. 716
• Parties: STATE v. THOMPSON.
• Court: North Dakota Supreme Court

56 N.D. 716

219 N.W. 218

STATE

v.THOMPSON.

No. 8.

Supreme Court of North Dakota.

April 21, 1928.

Syllabus by the Court.

The trial of a criminal case includes the rendition of the verdict.

The constitutional provision set forth in section 13 of article 1 of the Constitution of this state, to wit, “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,” is a provision for the benefit of the defendant, as is also this provision of section 10771 of the Code (Comp. Laws 1913), “If the * * * indictment is for a felony, the defendant must be personally present at the trial,” and this provision of section 10877, “If the * * * indictment is for a felony, the defendant must, before the verdict is received, appear in person. * * *”

Where a defendant, charged with and on trial for a felony, admitted to and at liberty on bail, voluntarily absents himself from the trial, he waives his right to be present at the rendition of the verdict.

Where such defendant voluntarily absents himself from a trial the court should make reasonable exertions to find him to give him an opportunity to be present when the verdict is returned, but no defendant can be permitted by voluntary absence to impede the progress of a trial. In the case at bar the record is examined and it is held, that the trial court did all that could reasonably be expected to protect the defendant and his rights; that the defendant by his voluntary absence waived his right to be present when the verdict was rendered; and that the verdict so rendered must stand.

Where the defendant in a criminal case, on a motion for new trial and on appeal, contends that his counsel did not properly represent him and because of intoxication was unable to safeguard defendant's rights, the appellant must show to the court that such contention is substantially correct. The record examined, and it is held that there is nothing to indicate that such was counsel's condition, that the case was improperly tried, or that the defendant's rights were neglected. This court assumes, in the absence of a showing to the contrary, that the trial court would not permit any injury to the defendant's rights through the intoxication of his counsel, or through neglect of duty.

The evidence is examined and is found sufficient to sustain the verdict.

Appeal from District Court, Mountrail County; John C. Lowe, Judge.

E. A. Thompson was convicted of grand larceny, and he appeals. Affirmed.R. E. Swendseid, of Stanley, for appellant.

Geo. F. Shafer, Atty. Gen., and C. N. Cottingham, State's Atty., of Stanley, for the State.

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.

[1][2][3] 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 the 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 courtroom after the jury retired. We quote the record:

“The jury in the above-entitled action having arrived at a verdict at 2 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 3 o'clock, and it appearing to the court that the defendant has willfully 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 40 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 courtroom, 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 courthouse and retired to a friend's residence, Mr. A. Hettletvedt, in Stanley, N. D., for rest; that he returned to the courthouse in about an hour and met the jury that had tried him as he entered the said courthouse; that neither affiant, his attorney, or any one 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 section 13 of article 1 of the Constitution of the state, and sections 10709, 10771, 10877, of the Compiled Laws of 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 1st 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 impaneled, 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 10709 of the Code (Comp. Laws 1913) provides for the personal appearance of the defendant when arraigned on a felony. This requirement was met. Section 10771 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 10877 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 is the contention of the defendant that this right is one which he cannot waive; that when the statute says “must” it means it is obligatory-a presence which the court must have, otherwise it is powerless to proceed.

This right to be present at the time the verdict is received is one peculiarly for the benefit of the defendant. If the defendant be in custody the court cannot proceed until he is produced, but must have him there that he may know the charge against him, take care of his own defense, confront the witnesses against him, and hear the testimony given. Neither the state nor the court can do anything to hinder the defendant from being present or to interfere with this right. Where the defendant gives bail and is at liberty he still has the right to demand that the trial on a charge which is a felony shall not proceed in his absence, but he has no right to create an absence so as to impede the trial. In other words, the defendant cannot voluntarily absent himself and thus paralyze the work of ...