Tiller v. State , 96 Ga. 430 ( 1895 )

Lumpkin, Justice.

1. The rule that one on trial for a criminal offense is entitled to be personally present at every stage of the proceedings, is too well settled to require argument or the citation of authority. This rule, both in England and in this country, is so well recognized by the standard text-writers and by judicial decisions in an almost unbroken line of cases, that its existence cannot now be seriously called into question. It cannot be doubted that the argument of counsel is a stage of the proceedings, for the trial is not concluded until after the verdict has been received and recorded. The importance of this particular stage as affecting the accused is obvious, it being a matter of vital concern to him to see and hear everything done and said both for and against him as the trial progresses. When the accused is on bail, and therefore in control of his own movements, he may, by voluntarily absenting himself from the court-room, be . deemed to have waived his right to make any objection to the validity of the trial because of his absence. In the case of Commonwealth v. McCarthy, recently decided by the Supreme Court of Massachusetts, 40 N. E. Rep. 766, it was held that when a person on trial for felony, who was on bail, voluntarily absented himself without leave when the jury retired to consider the case, and remained absent, the verdict rendered in his absence was binding upon him. But Kuowlton, J., who delivered the opinion of the court, distinctly stated the general rule we have above announced, and in support thereof cited numerous authorities, which, as already intimated, might be multiplied indefinitely. The case is altogether different when the accused has not been admitted to bail, but is confined in jail, and therefore in the strictest sense a prisoner whose movements are absolutely controlled by the court. In the case with which we are now dealing, the accused was such a prisoner. Assuming his right to be present while the solicitorrgeneral was arguing the caáe to the jury, and the accused being then absent, though the presiding judge was not actually aware of this fact, the real question is: Did the failure of counsel for the accused to call the attention of the court to the fact that the accused was not present constitute a binding waiver by or for him of his undoubted right to be present?

It does not appear from the record that the counsel knew of the prisoner’s absence; but granting that he had such knowledge, or is chargeable with it, could his mere silence be held sufficient to constitute such a waiver ? "We think not. In the case of Bonner v. State, 67 Ga. 510, this court held that in view of the right of the prisoner in a criminal case to be present in person throughout the trial, it was error for the judge to recharge the jury while the prisoner was absent and in confinement, although his counsel were present and kept silent. This case is, in principle, directly applicable to the case at bar, because the argument to the jury was a matter of great importance, and of almost, if not altogether, as much concern to the accused as the charge of the court. We therefore are of the opinion that it was a duty devolving upon the judge himself to see to it that the accused was brought from jail to the courtroom, before allowing the argument to proceed; and the omission to perform this duty is of sufficient gravity to require the granting of a new trial. We do not mean to say that the duty of seeing that his client was present did not also rest upon the counsel; but his failure in this respect should not relieve the judge of giving the .proper attention to this matter, he being primarily, and above all others, responsible for the regularity and lawfulness of the trial.

2. The motion for a new trial complains of the introduction of certain evidence. Without setting it forth, it is enough to say this evidence was manifestly hearsay, and tended to show the guilt of the accused in respect to the crime with which he was charged. It was therefore clearly inadmissible, and ought not to have been Teceived.

3. By way of rebutting the ease made against him by the State’s evidence, the accused sought to show that the crime was committed by other persons; and in this connection, introduced testimony tending to show a motive on their part for committing it. To meet this contention by the accused, the State introduced a witness who, it seems, had undertaken, for reasons of his own, to investigate the question whether these other persons were guilty or not guilty of this crime; and the court, over the objection of counsel for the accused, erroneously permitted this witness to testify that he had neither seen nor heard anything whatever indicating that these persons had any connection with the perpetration of the offense, and had not found anything to confirm his suspicions as to their possible guilt. In other words, the opinions of this witness, resulting from a private investigation made by himself, were allowed to go to the jury. While it would have been entirely proper to permit the witness to testify to relevant facts within his knowledge, it'was for the jury, and not for him, to say what conclusions should be drawn from the same.

We have dealt with the principal questions presented for our consideration; and without intimating any opinion as to the merits of the case, are satisfied that it should undergo another investigation.

Judgment reversed.