Watkins v. State

• Decision Date: 17 January 1916
• Citation: 70 So. 457,110 Miss. 438
• Court: Mississippi Supreme Court
• Parties: WATKINS v. STATE

70 So. 457

110 Miss. 438

WATKINS v. STATE

Supreme Court of Mississippi

January 17, 1916

October 1915

APPEAL from the circuit court of Hinds county. HON. W. H. POTTER Judge.

Ebb Watkins was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Powell & Featherstone, for appellant.

From the time when the memory of man runneth not to the contrary it has been the settled law in Mississippi that a prisoner charged with a capital crime who is in custody at the time of the trial must be present at every moment of the trial and in addition the record must so show. This rule was first adopted by this court in 1847, in the case of Scoggs v. State, 8 S. & M. 722. Price v. State, 36 Miss. 531; Stubbs v. State, 49 Miss. 716; Long v State, 52 Miss. 23; Rolls v. State, 52 Miss. 392; Brooks v. State, 81 Miss. 391; Sherrod v. State, 93 Miss. 774; Warfield v. State, 96 Miss. 170; McClendon v. State, 96 Miss. 250; Stanley v. State, 97 Miss. 860: Sadley v. State, 98 Miss. 401; Lee v. State, 101 Miss. 387; Doss v. State, 104 Miss. 598.

I had foolishing imagined perhaps, that with this unbroken line of decisions extending over a period of nearly seventy years of the state's judicial history, that the question at issue had been fully, completely, and finally settled at least in this state, and I tried to impress this view upon the court below in our motion for a new trial. How miserably I failed, the court can gather from the very elaborate opinion or brief which the learned judge below has filed in this case after the case had been finally decided in his court. This has been incorporated in the record for the guidance of this court. Being therefore a little diffident of my powers to enlighten, I humbly submit the matter for further elucidation to the wisdom of this honorable court.

Edward Mayes, for the state.

OPINION

COOK, J.

Appellant was convicted of the crime of murder, and sentenced to a life term in the penitentiary, and appeals to this court. The record shows that a witness for the state was examined in the absence of the accused. It appears that this witness was called to the stand and sworn, whereupon the presiding judge retired temporarily from the courtroom, and then the defendant, at his own request, was taken from the courtroom by the sheriff to answer a call of nature. In the absence of the defendant, the judge took the bench and the state proceeded to examine the witness, and after having finished the examination the witness was tendered to defendant's attorneys, and was partially cross-examined when the defendant's absence was discovered. The court then required the state to re-examine the witness in the presence of defendant, which was done.

By a long and unbroken line of decisions this court has held that the examination of a witness in the absence of the defendant charged with a capital felony is fatal to the trial. Scaggs v. State, 8 S. & M. 722; Price v. State, 36 Miss. 531, 72 Am Dec. 195; Stubbs v. State, 49 Miss. 716; Long v. State, 52 Miss. 23; Rolls v. State, 52 Miss. 391; Booker v. State, 81 Miss. 391, 33 So. 221, 95 Am. St. Rep. 474; Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.), 509; Warfield v. State, 96 Miss. 170, 50 So. 561; McLendon v. State, 96 Miss. 250, 50 So. 864; Stanley v. State, 97 Miss. 860, 53 So. 497; Sadler v. State, 98 Miss. 401, 53 So. 783; Lee v. State, 101 Miss. 387, 58 So. 7; Doss v. State, 104 Miss. 598, 61 So. 690; It is too late to overrule these decisions and adopt a new rule. If it be true, as argued by the state, that the decisions were based on common-law principles, it would seem that the legislature has approved the rule announced by nonaction in...