Territory v. Day

• Decision Date: 08 September 1894
• Citation: 37 P. 806,2 Okla. 409,1894 OK 17
• Parties: TERRITORY v. DAY.
• Court: Oklahoma Supreme Court

37 P. 806

2 Okla. 409, 1894 OK 17

TERRITORY v. DAY.

Supreme Court of Oklahoma

September 8, 1894

Syllabus by the Court.

1. An amendment of a case-made, presented to the trial judge for signature and settlement, cannot be such as to contradict the records of the court.

2. In a criminal prosecution for a felony, the defendant must be actually present during the trial, and when his personal presence is necessary, in point of law, the record must show the fact. It is not allowable to indulge in the presumption that everything was rightly done, to the extent of presuming that the defendant was present.

Appeal from district court, Logan county; before Justice Frank Dale before Justice Frank Dale.

George W. Day was convicted of false pretenses, and appeals. Reversed.

S.D Decker and C. R. Buckner, for appellant.

A. H Huston, Co. Atty., for the Territory.

SCOTT J.

This is a criminal action prosecuted by the territory of Oklahoma by in dictment returned by the grand jury of Logan county on the 23d day of March, 1893, against George W. Day, charging him with having obtained from one Edward Much the sum of $400 by means of false pretenses. The defendant was arraigned upon the charge on March 27, 1893, and entered a plea of not guilty, a general demurrer to the indictment having been overruled by the court. But before the demurrer was passed upon the county attorney dismissed the second count of the indictment, and the case proceeded to trial on the first count. On the 5th day of October, 1893, the defendant was tried, and found guilty as charged in said first count of the indictment, and on the 11th day of November, 1893, sentenced to the penitentiary at Lansing, Kan., for the period and term of two years. From this judgment the defendant appealed to this court, and asks a reversal thereof, presenting 15 assignments of error. Scarcely any of these alleged errors require the serious consideration of the court, were it necessary, after an examination of the record of this case to pass upon them.

The fourteenth assignment of error charges that the defendant was not present at every step during the trial. This, if true, in any case, is reversible error, for it is the right of every defendant, in a criminal prosecution against him for a felony, to be present in open court at all times during the pendency of his trial. St. Okl. 1893,§ 5147. This is not only a statutory right, but a constitutional one, and one, too, that cannot be waived. Lewis v. U. S., 146 U.S. 370, 13 S.Ct. 136. The defendant is not only required to be present, but it must appear affirmatively upon the records of the court that he was present. These two propositions are too well settled to admit of reasoning to the contrary. It is fatal error. Hopt v. People, 110 U.S. 574, 578, 579, 4 S.Ct. 202; Ball v. U. S., 140 U.S. 118, 11 S.Ct. 761; Prine v. Com., 18 Pa. St. 103, 104; Hooker v. Com., 13 Grat. 763, 766; Dyson v. State, 26 Miss. 362-382. To dispose of this feature of the case, it is only necessary to ascertain from the record if the assignment of error mentioned states the truth. If it does, it is useless to consider the other questions raised in this case.

In support of his motion for a new trial the appellant introduced the court record to establish his contention that it does not show affirmatively that he was present during the trial, and a certified transcript is made a part of the case-made, and is before us for consideration. Without setting out the record at length, it appears that the presence of the defendant is affirmatively shown in court only when his plea of not guilty was entered, and subsequently when brought before the bar of the court for the pronouncement of judgment. The record of the court presented indisputably shows this to be a fact. The territory seeks to avoid this by the suggestion of amendments. The trial court allowed suggestions of amendment to the case-made, when presented for signature and settlement, showing that the defendant was in fact present at each time when the records of the court show that proceedings in such cause were had. To the allowance of these amendments the defendant at the time excepted, and the point is properly...