Pool v. State , 120 Miss. 842 ( 1919 )

HolefN, J.

delivered the opinion of the court.

.The appellant, Lee Pool, was tried and convicted upon a charge of murder and given a life'sentence, from which he appeals.

Eeversal of the judgment of the lower court is asked on the .ground that the trial of the accused proceeded during his involuntary absence. In support of this contention, the record shows that, when the court reconven-. ed in the morning, the county prosecuting attorney began his opening argument to the jury before the accused was brought to the courtroom from the jail. As soon, as the judge discovered the absence of the prisoner, he stopped the argument of the prosecuting attorney and had the prisoner brought to the courtroom, and seated within the bar by his counsel, who were already present while the prosecuting attorney was addressing the jury. After the prisoner was present with his counsel, the prosecuting attorney again began his address to the jury and repeated in substance, as near as he could, what he had said to the jury in the absence of the prisoner. There was no objection made at any time by the accused or his counsel to proceeding further with the prosecution and trial of the ease. The trial progressed to conviction and sentence without objection or protest upon the part of the accused or his counsel, and the complaint against proceeding in the absence of the prisoner was made for the first time in the motion for a new trial. According to the agreement in the record, the county prosecuting attorney addressed the jury in the following language during the absence of the accused.

“Gentlemen of the jury, I am sure that you share with me the gratification that this trial is about to come to an end. We are about to get it behind us, and every man connected with, it, I am sure, will have the consciousness of duty well performed. At the outset I will say that this defendant, though a negro, is entitled to the same, fair and impartial trial as if he were a white man. His able counsel, Mr. Magee, before accepting you on the jury, asked you the question whether or not you would give him such a trial and you assured him that you would. He knew, and we all know, that you would not let his color prejudice you; but he asked the*' question in order to specially impress you along this line. Now to turn the case around, I wish to remind you that the deceased was also, a negro, an'd you should not forget that under onr law the life of a negro, though he be a worthless negro, at that, is just as amply protected as the life of any white man. So I ask yon to remember this, and not regard yonr duty lightly.’ ’

It is urged by the appellant that the lower court committed fatal error in proceeding with the trial while the accused was involuntarily absent in the custody of the sheriff. It is practically admitted by counsel for the appellant that the rule of waiver announced in Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cac. 1918E, 371, is in the way of reversal here, but urges that the absence in the Thomas Case was voluntary, while here it was involuntary; and further that the rule announced in 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, should be foitawed by this court in the case at bar, notwithstanding that these cases were impliedly, if not expressly, overruled by the Thomas Case. Counsel for appellant in their brief say that: “The construction placed upon the statute by the court in the Thomas Case puts us dangerously nigh the precipice or jumping-off place.”

We are constrained to adhere to the rule announced in the Thomas Case. That decision, dealt principally with the true construction of the statute, section 1495, Code of 1906 (section 1253, Hémingway’s Code), which was applicable there, and also here. The Thomas Case should occasion no fright when closely approached. The opinion in that case simply announced a just and sensible rule of procedure under the statute, which in no case could result in depriving the accused of any substantial right on the trial. Instead of that case putting us “dangerously nigh the precipice,” we think it was a step to higher and safer ground, and placed procedure in criminal cases on a more reasonable and sane basis, and was conducive to a better administration of justice.

’¥e think the only substantial difference between the Thomas Case, supra, and the before ns, is that the accused in the Thomas Case waived bis presence at the trial by voluntarily absenting himself and failing to object to the progress of the trial after bis return, and here the accused was involuntarily absent and failed to object to the further progress of the trial after bis return, and having knowledge of what transpired in bis absence. But the decisive point is whether or not the accused waived bis presence by failing to object, and thereby impliedly consenting to the further progress of the trial. Whether the prisoner waived bis presence by bis voluntary absence or waived it after bis return makes no difference. It is a waiver in either event.

It has been held by this court, in the Sherrod Case for instance, that the accused may waive bis presence expressly or impliedly. The inquiry then is wketbeV'**br not, as a matter of fact, the prisoner waived bis' presence We think the appellant impliedly waived bis presence after be reached the courtroom by failing to object to further proceeding, and thereby consented that the case proceed to final judgment. In such cases there may be an empress or implied waiver. The waiver may be implied by the acts and conduct of the accused or by expiess language. In either event, it is a waiver, and be cannot complain. He must object before verdict, or be waives by consent. The accused was informed, as to what happened during bis absence, but made no protest to proceeding-further. If be fails to object and accepts bis chance of a favorable jury verdict, be cannot afterwards complain.

Under the Thomas Case, it will be observed that-the old rule that the accused could not waive bis presence in a capital case, under the common law, was overruled in construing and following section 1495, Code of 1906; section 1253, Hemingway’s Code. Therefore the question to- be determined is whether or not the accused did in fact, either expressly or impliedly, waive his right to be-present during the progress of the trial.

We respectfully call attention to that part of the statute interpreted in the Thomas Case which provides that the prisoner may waive his presence and the trial-progress ‘ ‘ at the discretion of the court. ” This provision' .means that it is -within the sound discretion of the- fair-minded and impartial judge to say in such cases whether or not the trial will proceed against the accused, even though the accused waived his presence in the manner prescribed by the statute. It is obvious that to permit a trial to progress against the accused, in some instances, even though he had waived his presence, where his absence was of such a length of time and the proceedings had. in his absence were such as to substantially injure or prejudice his rights in the case, would be an abuse of the judicial discretion reposed in .the judge, and such error would be subject to review and correction here.

The opening address by the county prosecuting attorney in this case manifestly did no injury to the appellant. A perusal of it will be convincing that it was as-favorable to the accused as to. the sthte. It therefore appears that no harm was done the appellant by the argument of the prosecuting attorney in his absence, and the court was not in error in discretionarily permitting the trial to progress after the absence of the accused, because the accused impliedly waived his presence, and it does not reasonably appear that what was' said and done in his absence -substantially prejudiced Iris case and prevented a fair and impartial trial.

The judgment of the lower court is affirmed.

Affirmed.

Sykes, J., dissenting.