Thomas v. State

• Decision Date: 25 March 1918
• Docket Number: 20083
• Citation: 78 So. 147,117 Miss. 532
• Court: Mississippi Supreme Court
• Parties: THOMAS v. STATE

78 So. 147

117 Miss. 532

THOMAS v. STATE

No. 20083

Supreme Court of Mississippi

March 25, 1918

Judgment affirmed.

same sitting, when the Corley White case was affirmed en banc on some point not announced, this court through Mr. Justice HOLDEN was announcing in the case of Hunt v. City of Tupelo, 112 Miss. 178, that the absence of the defendant in a misdemeanor case when the verdict was returned, was fatal error under certain circumstances; so we presume that Corley White's case was of no value as precedent.

AS TO DEFENDANT BEING PREJUDICED.

The learned attorney-general states that there was no prejudice done the defendant by conducting the examination of a juror during the defendant's absence from court and jury. Alongside the opinion of the attorney-general we put the opinion of this court as to this proposition; Mr. Justice Cook in the case of Woods v. City of Tupelo, 112 Miss. 132, says: "The argument is made that the defendant was not prejudiced by the error of the court. This is the stock argument so often repudiated by this court that we deem it unnecessary to comment upon it in this case."

AS TO COUNSEL FAILING TO MAKE SOME FORMAL EXCEPTION WHEN ERROR DISCOVERED.

The attorney-general deems it of importance to direct the court's attention to the failure of counsel for defendant to do something, make some objection--exactly what I don't know--when he discovered that the defendant had been absent. I don't think that any action of counsel for defendant could have cured the error, as this court has expressly stated that the presence of the defendant cannot be waived. The time for challenging this juror peremptorily had passed when this came to the knowledge of the defendant's counsel. In the case of Stanley v. State, 97 Miss 870, so good a criminal trial advocate as Mr. W. SHED. HILL there representing the defendant, remained silent. He declined to suggest to the court any way out of the error there committed, and declined, to consent to any procedure whatsoever, that tended to cure the error. In that case when distinguished counsel assumed that attitude, the trial court did every reasonable thing that he could think of, even attempted to follow the procedure suggested in dictum of Booker's case; but when it came to the supreme court the case was reversed, and there this court held, in effect, that silence of defendant's attorney or the failure of the attorney then and there to accept the court's offer of a new jury or a trial de novo, could in no way waive the error and the court winds up the opinion by quoting very freely from Sherrod's case, 93 Miss. 774, to the effect that in capital cases defendant cannot waive the right to be present.

Frank Robinson, assistant attorney-general, for the state.

The point principally argued for reversal by appellant is that the court committed reversible error in overruling the motion for a new trial, alleging that the appellant was not in the courtroom during the voir dire examination of two of the jurors. The appellant has cited in his brief all the Mississippi cases on this point, among the number being the leading cases of Ebb Watkins v. State, 110 Miss. 438, 70 So. 457; Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.) 509; and Warfield v. State, 96 Miss. 170, 50 So. 561.

There is testimony in the record showing that the appellant during the voir dire examination, voluntarily left the courtroom and without the knowledge or consent of his counsel, went into an adjoining room and was probably out of hearing and sight of the jury. Appellant's counsel did not even know of the defendant's absence from the courtroom until after the empannelling of the jury had been completed.

[ILLEGIBLE SLIP OP. PAGES 538, 539] case should be affirmed because the absence of the defendant was voluntary and not prejudicial. The absence of prejudice is affirmatively shown by the record.

HOLDEN, J. SMITH, C. J., concurs in the result. SYKES and COOK, JJ., dissent.

OPINION

HOLDEN, J.

George Thomas was convicted on a charge of murder and sentenced to imprisonment for life, from which judgment he appeals. During the stage of the trial when the jury was being impaneled to try Thomas, he voluntarily left the courtroom and went to the toilet with a deputy, remaining there about ten minutes in response to a call of nature. While he was absent two jurors were examined, one of whom was excused by the state, and the other was accepted by both the state and defendant. Thomas absented himself from the trial without the knowledge or consent of the court or his counsel. His counsel was informed of the fact about thirty minutes thereafter and before the jury was finally accepted to try the case, but neither counsel nor the accused made any objection to or protest against the progress of the trial. The court and district attorney knew nothing of Thomas' leaving the courtroom until the fact appeared in the motion for a new trial, and the fact of his absence was not disputed by the state. The motion for a new trial was overruled by the court, and this action of the court is assigned here as fatal and reversible error, and is the only serious question presented by the appeal.

Counsel for the appellant ably urges that the proceedings in the absence of the accused for ten minutes, during that part of the trial when the jury to try him was being impaneled, was a denial of his right to be heard, to be present, at his trial; a right given by the common law, and guaranteed by our Constitution, section 26, which provides:

"In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself," etc.

Counsel for appellant cites and relies upon several cases decided by this court to sustain his contention, which cases are apparently decisive of the question in his favor. The leading cases cited which seem to fortify him in his position are the Sherrod Case, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.) 509, Warfield Case, 96 Miss. 170, 50 So. 561, and Watkins Case, 110 Miss. 438, 70 So. 457. From a careful reading of all the cases cited by counsel we observe that in no case did this court especially consider and expressly pass upon the question of whether the accused may waive his presence during his trial, as provided in section 1495, Code 1906 (section 1253, Hemingway's Code), which is as follows:

"In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail, or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for non-appearance, the trial may progress, at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court."

This important statute seems to have escaped the notice and consideration of this court for more than a quarter of a century. Why so, we are unable to say, but the fact that it has been overlooked or else ignored during this period is certain. What does this statute mean and intend? Is it a valid expression of the will of the Legislture?

We think the meaning, purpose, and intent of the statute are plainly expressed by its language, and that it is valid and constitutional. It simply means that in all criminal cases the accused may waive his presence at any stage of the trial, if in custody, and the trial will proceed in his absence, provided he consents thereto; and provided, further, that such proceeding in teh absence of the accused meets with the discretionary approval of the court. We think the statute announces a reasonable rule of procedure in criminal cases; it is promotive of a fair and impartial administration of justice, and deprives the accused of no right or privilege that he had heretofore enjoyed, but merely permits him to waive a guaranteed personal privilege, if he so desires.

In passing this wholesome statute, the Legislature very probably had in mind that section 36 of our Constitution, which provides that "the accused shall have a right to be heard," means, that the accused shall have an opportunity to be heard; that he shall not be denied the opportunity to be heard if he so desires; and if he voluntarily and deliberately refuses to exercise this privilege and thus by his own act deprives himself of the right, then, in that event, he has waived the right. Without the statute, he might be denied the privilege to waive the right. Therefore the statute is not unfavorable to the accused in allowing him the right to waive his presence.

There are other legal rights guaranteed the accused in this same section 26 which are frequently waived by him without question. For instance, the accused has a right to be heard by himself and counsel, but often the accused remains silent throughout the trial, thus waiving a right to be heard by himself; he has the right to refuse to testify if his case yet this personal privilege is frequently waived by him; he may even waive his right to a trial and plead guilty to the charge. Then why should the accused be prohibited from waiving his presence for a short period during some stage of his trial, especially when such...