State v. Myers , 29 Utah 2d 254 ( 1973 )

ELLETT, Justice:

This is an appeal from a conviction of the crime of forgery (a noncapital felony offense) and sentence pursuant thereto.

The defendant in his original brief makes only one assignment of error, viz.: The court below erred in continuing the trial in defendant’s absence.

There is no dispute in the facts, and the evidence justified the verdict rendered. The trial of the case began December 16, and the state rested the next day. The defendant asked for and was granted a continuance until December 22 in order for an out-of-state witness to appear and testify. On the morning of the 22nd neither the witness nor the defendant could be found. The defendant was and at all times material herein had been at liberty on bail. He was in attendance of court during the first two days of the trial and voluntarily and intentionally absconded as soon as he was granted the five days’ continuance of trial.

On the 22nd of December defendant’s counsel moved for a mistrial on the ground that the court could not proceed in the absence of the defendant. Counsel informed the court that there were no witnesses to be called on behalf of the defendant, whereupon the court compelled him to rest the case. Arguments were made to the jury, and a verdict of guilty was returned. A bench warrant for the arrest of the defendant was issued forthwith and was served upon the defendant January 4 following.

Our statute¹ reads:

If the prosecution is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor, the trial may be had in the absence of the defendant: . . .

What this statute means is that a trial involving a charge of felony cannot be commenced in the absence of the defendant. He is thus assured of notice of the commencement of the trial.

It has been said that the requirement of the presence of the defendant in court at all stages of the trial proceeds on the presumption that he is in custody and must be brought before the court by the officer who detains him.² It is a right which belongs to every defendant. However, it is not absolutely necessary for a defendant who is at large upon bail or recognizance charged with a non-capital offense to be personally present in court during all of the proceedings at his trial.³ It is a right which may be waived under certain circumstances.

In the administration of justice a court cannot be rendered helpless and impotent by the devious and cunning ways adopted by the defendant in this case. The great weight of authority sustains this proposition.⁴ To hold to the contrary would permit a mischievously inclined defendant to profit by his own wrongdoing and would be unfair to those individuals accused of crime who are not inclined to abscond, because the courts would tend to revoke bail and hold all defendants in custody to assure their presence at all times during the trial.

In this case the defendant had waived his right to be present in court and cannot be heard to complain because the court did not declare a mistrial.

Other assignments of error made by the defendant in a supplemental brief⁵ are without merit.

We find no error on behalf of the trial court and, therefore, affirm the judgment.

CALLISTER, C. J., and TUCKETT and HENRIOD, JJ., concur.

1 . Section 77-27-3, U.C.A.1953.

2 . Price v. State, 36 Miss. 531.

3 . State v. Aikers, 87 Utah 507, 51 P.2d 1052 (1935).

4 . See 21 Am.Jur.2d Criminal Law § 286, p. 317; Hanley v. State, 83 Nev. 461, 434 P.2d 440 (1968) ; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; Mulvey v. State, 41 So.2d 156 (Fla.1949).

5 .This brief was filed after the case was discussed by the court.