Woods v. City of Tupelo

• Decision Date: 06 November 1916
• Citation: 72 So. 879,112 Miss. 132
• Court: Mississippi Supreme Court
• Parties: WOODS v. CITY OF TUPELO

72 So. 879

112 Miss. 132

WOODS v. CITY OF TUPELO

Supreme Court of Mississippi

November 6, 1916

October 1916

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Sarah Woods was convicted of unlawful retailing of intoxicating liquor and appeals.

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

Reversed and remanded.

Geo. T Mitchell, for appellant.

C. P. Long, for appellee.

COOK, P. J. STEVENS, J. dissenting.

OPINION

COOK, P. J.

Appellant was tried in the circuit court of Lee county upon a charge that she had unlawfully sold beer within the corporate limits of the city of Tupelo. After the evidence was introduced, the instructions of the court were read to the jury, and counsel for the prosecution and for the defendant completed their arguments, and the jury retired to consider their verdict. Before the jury had reported their verdict, the court, at four o'clock p. m., announced from the bench that the court would be adjourned until eight thirty o'clock the following morning. The sheriff then announced in open court that all parties and witnesses were discharged until eight thirty o'clock the following morning. After the adjournment of the court, and after appellant and her attorneys had left the courtroom, the jury notified the court that they were ready to report, whereupon the court, without giving any notice to the defendant or her counsel, received the verdict of the jury finding the defendant guilty as charged. On the following morning, when the court convened, a bill of exception was presented to the presiding judge, embodying the above facts, which was signed by the judge. Defendant also made a motion to arrest the judgment, based on the facts above stated, which motion was overruled by the court. A motion for a new trial was made and overruled, and the court imposed a fine of one hundred dollars and sentenced the defendant to confinement in the county jail for a term of thirty days.

In our opinion the court erred. The defendant, by the affirmative act of the court, was denied her constitutional right to be present at every stage of her trial. It may be said that the verdict of the jury was the important event of the trial, and concerned the defendant more than all of the precedent proceedings.

The argument is made that the defendant was not prejudiced by the error of the court. This is a stock argument, so often repudiated by this court that we deem it unnecessary to comment upon it in this case.

True, the defendant was on bond, but it is clear that she had not forfeited her bond by voluntarily absenting herself; on the contrary, she was absent by the express permission of the court.

In Garman v. State, 66 Miss. 196, 5 So. 385, is announced the rule and its application.

Reversed and remanded.

DISSENT BY: STEVENS

STEVENS J. (dissenting).

The record in this case affirmatively shows that the city of Tupelo introduced sufficient evidence to warrant the jury in finding beyond every reasonable doubt that the defendant was guilty of the misdemeanor here charged. The defendant offered no testimony whatever, and therefore I presume she has no defense on the facts. The jury reached the only verdict which, under the law and facts of this case, would have been proper. This verdict, it is true, was returned into court in the absence of both the accused and her counsel. I am perfectly willing to concede that the defendant had a right to be present, and this right the court could not willfully or arbitrarily deny to her. In this case, however, the circuit court, after concluding the business of the day and after announcing that all parties and witnesses would be discharged until eight thirty o'clock the following morning, thereafter reconvened his court for the purpose of receiving the verdict of the jury then deliberating upon this case. When the learned circuit judge adjourned his court, he, of course, had no intention of denying and did not thereby necessarily deny, this defendant of her privilege to tarry and determine for herself whether the jury would report. The record shows that the adjournment for the day was taken at four o'clock p. m. and, without lingering to determine whether the jury would report, the accused left for her home, and the circuit judge did the very natural and humane thing of accepting this verdict in the absence of the accused, rather than keep the jury locked up overnight. The defendant in this case does not say by her bill of exceptions that she desired or intended to poll the jury, and she does not by this appeal attempt to challenge or impeach the verdict; that is to say, she does not even now contend that the verdict as returned was not the unanimous verdict of the jury. She simply relies upon the technical proposition that she was not present when the verdict was returned, and this irregularity my Brethren have dignified by classing it as a fatal and reversible error. To this I cannot assent. It must be borne in mind that this is a misdemeanor case and not a felony. In such cases the weight of authority sustains the view that the presence of the defendant at the reception of the verdict is not necessary. "In prosecutions for misdemeanor the weight of authority seems to be that it is not necessary that the defendant should be personally present at the reception of the verdict." Encl. of Plead. & Prac. vol. 22, p. 928, and the authorities cited in the footnote. The case is altogether different from that of Garman v. State, 66 Miss. 196, 5 So. 385, relied upon in the majority opinion. In the Garman Case the accused was denied the right to be present during the trial simply because he was a witness in the case. In that case the court denied the accused the constitutional right of being confronted by the witnesses against him, as also the right to conduct his defense. In Price v. State, 36 Miss. 531, 72 Am. Dec. 195, our court on this point said:

"The right of the defendant to be present, proceeds upon the presumption that he is in custody, and has no power to be present, unless ordered by the court to be brought into court. But, under our law, he may waive that right. If he is not in custody, so as to be deprived of the power to attend, it would seem that the reason of the rule as to his right to be present would fail; for he is voluntarily absent when he ought to be present, and cannot complain of the consequence of his own voluntary act. His voluntary absence must be taken to be a waiver of his right to be present. . . . Hence, though the verdict in his absence was irregular, so far as his being present, and in the power of the court, to submit to its judgment, yet no prejudice was done to his rights, and he can take no benefit from his own illegal act."

So said our court in a felony case, and there is a vast difference between misdemeanors and felonies. The right of the accused to be...