Bell v. State , 66 Miss. 192 ( 1888 )

Coopek, J.,

delivered the opinion of the court.

The court should not have required the accused, as a condition upon which he would be permitted to testify at all, to take the stand before examining other witnesses whom he desired to introduce. One charged with a felony has a right to be present in court during the whole of the trial, and unless he voluntarily absents himself from the court, the trial may not proceed in his absence. The right to be present during the examination of his ■other witnesses, and the right to testify in his own behalf, are both ¡secured and equally secured to the accused by law, and neither may lbe denied or abridged by the court. It must often be a very ¡serious question with the accused and his counsel whether he shall be placed upon the stand as a witness, and subjected to the hazard of cross-examination, a question that he is not required to decide until, upon a proper survey of all the case as developed by the ¡state, and met by witnesses on his own behalf, he may intelligently weigh the advantages and disadvantages of his situation, and, thus advised, determine how to act. Whether he shall testify or not; if so, at what stage in the progress of his defense, are equally submitted to the free and unrestricted choice of one accused of crime, and are in the very nature of things beyond the control or direction of the presiding judge. Control as to either is coercion, and coercion is denial of freedom of action. If, in response to the suggestion of the judge, the accused had stated that he desired to testify, but could not in justice to himself take the stand until after .other testimony should be delivered, what course could the court have taken ? It could not have removed him from the presence of the jury while the other witnesses were being examined, for that would have been to deny him his constitutional right of being present at his trial. The only other course was for the judge either to leave the defendant free to speak as a witness when he should elect so to do, or to compel him, before the examination of other witnesses, to take the stand, under the admonition that if he did not he should be precluded from testifying at all. A defendant placed in such condition would frequently find the lesser evil to be in retiring from the court, leaving to his counsel the duty of eliciting from his witnesses the facts of his defense. But we apprehend that no court would consider such absence a voluntary one, and because voluntary, authorizing the trial to progress in his absence. Practically the court states to the defendant that he may not be both defendant and witness, though the law recognizes him as both, and ■deals with him as a composite of both, and not wholly either. As defendant, the court cannot enforce the rule against him as a witness, but because he is a witness it deprives him as defendant ■of his right to elect when as a witness he shall testify. The only rule practicable under the law is to treat the accused as defendant, except while he is upon the stand as a witness, and it is probable than even then there may arise instances in which the court will be powerless to deal with the witness, because he is defendant.

The court also erred in excluding evidence of previous but uncommunicated threats made by the injured party against the accused. There was evidence tending to prove that the injured party made the first hostile demonstration, and though the jury might have disbelieved that such was the case, yet under such circumstances evidence of uncommunicated threats is admissible. Johnson v. The State, ante, p. 189.

The judgment is reversed and cause remanded.