Stokes v. State

• Decision Date: 13 December 1902
• Citation: 71 S.W. 248
• Parties: STOKES v. STATE.
• Court: Arkansas Supreme Court

71 S.W. 248

STOKES v. STATE.

Supreme Court of Arkansas.

December 13, 1902.

Appeal from circuit court, Jefferson county; Antonio B. Grace, Judge.

John Stokes was convicted of murder, and appeals. Reversed.

D. H. Rousseau, for appellant. Geo. W. Murphy, Atty. Gen., for the State.

WOOD, J.

Appellant was convicted of the crime of murder in the first degree. The record recites that: "During the closing argument of Creed Caldwell, who assisted W. B. Sorrells, the regular prosecuting attorney, in the prosecution of this case, and in the closing argument on behalf of the state, the said Creed Caldwell, while the court had retired to the room of the chancellor in the courthouse, and adjoining to the courtroom, made use of the following language, to wit: `Gentlemen of the jury, Mr. Foster, the attorney for the defendant, is too shrewd and too smart a lawyer to put the defendant on the stand to testify in this case.' Counsel for the defendant interrupted counsel for the state, and begged him to desist from such line of argument, but was unable to get him to refrain therefrom, until the sheriff could notify the judge of counsel's conduct, and, while the sheriff was on the way to the chancellor's room for the purpose of informing the court, the said Creed Caldwell, as counsel for the state, continued, and said to the jury that he did not care what anybody said, that was the law, and that, if Mr. Foster had put the defendant on the stand as a witness, it would not take this jury ten minutes to break his neck." The record continues: "As soon as the court was informed of the language and conduct of the said Creed Caldwell, which was within one minute thereafter, and the defendant could raise his objections to the remarks and language used by him to the jury and in his argument, the court proceeded to rebuke the said Caldwell and charge the jury in the following language, to wit: `Mr. Caldwell, I am certainly astonished that you should violate the plain letter of the law in this manner.' Here Mr. Caldwell stated that he did not know that there was a statute forbidding him to refer to the defendant's failure to testify. The court continued: `Gentlemen of the jury, the law permits the defendant to testify if he sees proper to do so, but this is a matter to be decided by his counsel, and the same law expressly forbids the counsel for the state to refer to the fact that the defendant does not go on the stand as a witness. It was highly improper for him to do so, and you must not let his language on that subject influence you in the slightest degree in arriving at your verdict. You must decide this case on the evidence before you, and I charge you that you must not consider the fact in any manner that the defendant did not testify as a witness. That is not even a circumstance in the case, and must not be allowed to influence your minds or prejudice the defendant's case. You cannot and must not consider the fact that defendant's counsel saw proper not to call him to the stand; that was a matter for his counsel to decide on, and with which you have no concern. You must banish the words of Mr. Caldwell on that subject, and decide the case just as you would had they not been uttered.'"

The facts shown by the above recitals are made one of the grounds of the motion for new trial. While it appears that the judge had lost control of the proceedings for only a very short time, yet that destroyed the integrity of the trial. For, without the presence of a presiding judge at all times to uphold the majesty of the law and enforce its mandates, there can be no trial such as is contemplated by the constitution and statutes. The constitution centers the power to preside over the proceedings constituting trials in felony cases in the person of a judge. The proceedings "will not run" without his superintending and controlling power even for a moment. We do not mean to hold that the judge must hear every word spoken and see everything that is done in the courtroom, nor that he is required to remain in the same place. This at times might be not only uncomfortable and inconvenient, but impossible. We do hold, however, that his presence where he can at all times direct the proceedings is essential. He must be where, either on his own motion or at the request of parties litigant, he can at all times during the trial protect and preserve their legal rights. In Georgia it is held that the mere absence of the judge during the progress of the trial, where no objection is made, and where the absence is only for a few moments and for a necessary purpose, is not necessarily reversible error. That, to become so, it must appear not only that objection was made to the failure of the judge to suspend the trial, but that his absence resulted in some harm to the losing party. But, in the last case in which this rule is followed, the supreme court says: "If it were an open question, we would hold that the presence of the judge at all stages of the trial is absolutely necessary to its validity, and that the absence of the judge from the trial without suspending same, for any length of time, no matter how short, or for any purpose, however urgent, would vitiate the whole proceeding, whether objection was made by the parties interested or not, and whether injury resulted to any one or not." Continuing, the court say: "The judge is such a necessary part of the court that his absence destroys the existence of the tribunal, and public policy demands that the tribunal authorized to pass upon the life, liberty, and property of the citizens shall be constituted during the entire trial in the manner prescribed by law." The court then adds: "The great weight...