Vowell v. State

• Decision Date: 02 August 1915
• Citation: 178 S.W. 768,132 Tenn. 349
• Parties: VOWELL v. STATE.
• Court: Tennessee Supreme Court

178 S.W. 768

132 Tenn. 349

VOWELL v. STATE.

Supreme Court of Tennessee.

August 2, 1915

Appeal from Circuit Court, Crockett County; T. E. Harwood, Judge.

E. F Vowell was convicted of crime, and he appeals. Affirmed.

T. C Gordon, for appellant.

The Attorney General, for the State.

NEIL C.J.

The plaintiff in error was indicted and convicted in the circuit court of Crockett county for the crime of burning his house to obtain the insurance, and is now serving a term in the state penitentiary. He appealed in error to this court, but having filed no bill of exceptions, the execution of the judgment was not stayed, and he was transported to the penitentiary in obedience to chapter 102, Acts of 1901, to enter upon the period of his servitude pending the appeal.

When the case was called for argument here the Attorney General inquired whether the court would order the prisoner to be brought from Nashville to Jackson so that he might be present at the hearing. This was considered unnecessary, and the case was proceeded with in his absence. There being, as already stated, no bill of exceptions, and no error being found on the technical record, the judgment was affirmed.

The practice in this court heretofore has been, in felony cases, to have the prisoner present; the only exception being that we have occasionally announced a judgment of reversal with a remand for a new trial where the plaintiff in error was on bond, permitting him to come in later and execute a bond or enter into a recognizance to appear at the next term of the trial court, meantime withholding the formal entry until the new obligation could be executed. Very little inconvenience has resulted from this practice as to persons under bond or recognizance, or in the case of persons in jail and transported from the counties in which they were convicted to the place where the Supreme Court might be sitting (Nashville, Knoxville, or Jackson), although quite an item of expense to the state in cases of the latter kind. When sitting at Nashville it is not very inconvenient or expensive to the state to have a prisoner brought from the penitentiary into court for trial; but when we are sitting at Knoxville or Jackson it is quite inconvenient and very expensive, to say nothing of the danger of escape, to have the prisoner, under the care of guards, transported some hundreds of miles from the penitentiary to the place of the court's sitting. Cases of this kind occurring under the operation of the act of 1901 previously cited, or when the prisoner has been convicted of one offense, has been incarcerated in the penitentiary for that, has been subsequently transferred to the trial court to stand trial for another offense, been returned to the penitentiary, and afterwards been brought out to have his case heard by the Supreme Court, and transported across the state, as already mentioned--these cases have brought the subject forcibly to our attention, and impressed upon us the duty of deciding whether it is essential to jurisdiction in any case that the appellant in a criminal case shall be personally present during the argument, or at the decision of his case in the appellate court.

The question has received consideration in several jurisdictions, and has, we believe, without exception, been answered in the negative.

There is no doubt that the accused must be present during his trial in the circuit court, criminal court, or other court of original criminal jurisdiction. Percer v. State, 118 Tenn. 765, 103 S.W. 780; Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Lewis v. United States, 146 U.S. 370, 373, 13 S.Ct. 136, 36 L.Ed. 1011.

It is equally clear that he need not be present in the appellate court. Phleming v. State, Minor (1 Ala.) 42; State v. Overton, 77 N.C. 485; State v. David, 14 S.C. 428; Donnelly v. State, 26 N. J. Law, 463, 471, and cases cited; Fielden v. People, 128 Ill. 595, 599 et seq., 21 N.E. 584, and cases cited; Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218.

Phleming v. State:

"The Constitution guarantees to the accused the right of being heard by himself and counsel. It is said that he cannot be heard unless present. We are of opinion, that this guaranty applies only to the courts in which the facts are to be inquired into, and the accused to be confronted by the witnesses against him."

State v. Overton:

The defendant had been tried in the lower court and convicted of murder, and he appealed to the Supreme Court of North Carolina. That court held there was no error, and ordered that its decision be certified to the trial court to the end that the latter might proceed to judgment and execution. When the defendant was called to receive judgment there, he objected that it should not be rendered against him, because he had been improperly convicted, and had been denied his constitutional right, in that he had not been present in the Supreme Court when his case was argued and determined. Speaking to this matter, the court said:

"This objection is founded upon an erroneous idea of a criminal trial, and of the power and duty of this court in such case brought before it by appeal. The Constitution provides that a defendant in a criminal action shall be informed of the accusation against him, and shall have the right to confront the accusers and witnesses with other testimony, and shall not be convicted except by the unanimous verdict of a jury of good and lawful men in open court, as heretofore used. That is his trial. This, of course, implies that he shall have the right to be present. If he complains of any error in his trial, the record of the trial is transmitted to this court.

Here are no 'accusers,' no 'witnesses,' and no 'jury'; but upon inspection of the record this court decides whether there was error in the trial, and, without rendering any judgment, orders its decision to be certified to the court below. It has never been understood, nor has it been the practice, that the defendant shall be present in this court; nor is he ever 'convicted' here."

State v. David:

"At the hearing of this case, the appellant being absent, the question was raised whether his presence was necessary; the court ruled that the hearing might proceed without the presence of the prisoner. As this is a departure from the practice heretofore obtaining in this state, although not embraced in the appeal, it may not be improper for the court to state briefly the grounds of this ruling. The practice of having the prisoner in cases of felony present in the appellate court was because of the ancient practice and precedents in the English courts. This practice grew up in England because a prisoner indicted for felony could not at common law appear by attorney or counsel. Therefore his presence was always required in every stage of the proceedings.

In the United States a different system prevails. In all criminal cases and in all the courts the accused is entitled to counsel. In this state he is entitled by article 1, § 13, of the Constitution to be fully heard in his defense by himself or by his counsel, or by both; and, if he claimed the right to be present and be heard in his defense, he would be entitled to that privilege, but his personal presence is not necessary in this court as a condition precedent to the hearing of such questions as may be raised here by appeal."

Donnelly v. State:

After stating the ancient English practice, substantially as in the preceding case, the court continued:

"But a totally different practice appears to have prevailed in this state upon proceedings in error. Upon as full an examination of the precedents as has been practicable since the application, we do not find a single case where upon writ of error the prisoner has been brought into court upon habeas corpus or has assigned errors in person."

After referring to authorities sustaining the point, the court proceeds:

"These cases meet one of the suggestions made by counsel upon the argument, that the prisoner is executed by virtue of the judgment of the higher court, and that he must * * * necessarily be present when the sentence is pronounced. This question, though not raised or discussed by counsel, attracted the attention and underwent the consideration of this court in the case of State v. Fox [25 N. J. Law], 566. It appeared then to the court that, if the prisoner was to be sentenced here, he must necessarily be present. But the judgment in error in capital cases, as in others, is simply of affirmance or reversal of the sentence pronounced upon the prisoner by the court below. By virtue of that sentence he is executed. The mandate for execution issues from the court below, not from the court of errors. The prisoner is executed by virtue of that mandate. The writ of error does not suspend its execution or impair its efficacy. * * *"

Fielden v. People:

Samuel Fielden, Michael Schwab, Albert R. Parsons, Adolph Fisher George Engle, and Louis Ling had been tried and convicted in the criminal court of Cook county, and sentenced to be hanged for the crime of murder. A writ of error was procured from the Supreme Court of the state, and duly prosecuted. In the Supreme Court, no error being found in the proceedings of the trial court, the judgment of that court was affirmed, and a new date for the execution fixed. The judgment of affirmance contained the words "came the parties," thus indicating the prisoners' presence in court, when the judgment was rendered; but, in fact, they were not present. They were confined in the Cook county jail. A motion was made to correct this recital with a view to making the point that the judgment was void because of the absence of the prisoners. "In our opinion," said the court, "the amendment, if made,...