Chance v. State , 156 Ga. 428 ( 1923 )

Hill, J.

R. H. Chance was indicted for the murder of Watson Allen; and the jury returned a verdict of guilty, with a recommendation to the mercy of the court. The defendant filed his motion for a new trial, which was overruled, and he excepted.

The tenth ground of the motion for new trial is as follows: “ Counsel for the State offered in evidence a Ford automobile which belonged to the defendant on trial, and in which said defendant was riding along the road leading by the home of the deceased on the morning of the shooting; and at the request of counsel for the State the court allowed the jury trying said case to leave their seats in the jury-box located on the second floor of the court-house, and proceed, accompanied by the judge presiding in said case, out of the court-house and across the court-house yard and across the street adjacent to said yard to where said Ford automobile was parked, in order that said jury might view, as evidence in said case, said automobile, and during the time the jury was gone from the court-house to view said automobile the defendant on trial was left, and remained, on the second floor of the court-house entirely out of sight and hearing of the jury and the presiding judge in said case. At the time the jury and the presiding judge were out of the court-house and on the street viewing said automobile, the defendant was in the custody of the law, and made no waiver of his right to be present during this stage of his trial, and that he did not authorize his counsel to make such waiver for him, and that his counsel made no such waiver in his presence, and if an unauthorized waiver has been made by his counsel he has not since ratified the same, or allowed the court to act upon a waiver of counsel, if there was such waiver, since he has notice that the same was made; and that this defendant did not consent or agree for the jury to leave the court-house and in his absence view said automobile as evidence in said case. This was error, because the defendant was deprived of his legal right to be present at every stage and proceeding of his trial, as guaranteed to him under the laws and constitution of the State of Georgia.” This ground of the motion is supported by a number of affidavit's. In approving the grounds of the motion for new trial the 'presiding judge appended the following note: “ Ground number 10 of the amended motion for new trial is approved, subject to the following notations by the court: First. Counsel for the State offered the automobile in evidence; counsel for the defendant consented ; and the court announced that the jury, the court, and' attorneys and parties would go and look at the automobile. Second. The court intended for the defendant, E. H. Chance, to accompany the jury and the court and his attorneys to where the car was, and the court thought that the defendant had accompanied 'the jury, and had no notice that he remained in the court-house until the motion for new trial was presented in this case. Third. Neither the defendant nor his attorneys ever called the court’s attention or made any complaint that the defendant was not allowed to accompany the court and the jury to view the automobile. It was the intention of the court that the defendant should accompany the court and jury along with his attorneys; and if he remained in the court-room he did it without authority from the court or any one authorized by the court, and, so far as the court is concerned, his remaining in the court-room while the jury went out to view the car was entirely voluntary on his part.”

The constitution of this State provides that every person charged with an offense against the laws of this State shall be confronted with the witnesses testifying against him. Art. 1, sec. 1, par. 5 (Civil Code 1910, § 6361). In Wade v. State, 12 Ga. 25, this court held: “ It is error for the court, on the trial of a criminal cause, after the jury have retired to their room to consider of their verdict, to call them back in the court-room, and read over to them the evidence taken down by the court, without the consent of the prisoner’s counsel, and in the absence of the prisoner.” In the opinion it was said: “ This was clearly error. The court has no more authority, under the law, to read over testimony to the jury, affecting the life or liberty of the defendant, in his absence, than it has to examine the witnesses in relation thereto in his absence.” In Wilson v. State, 87 Ga. 583 (13 S. E. 566), this court held: “On a trial for murder, it is the right of the accused to be present at all stages of the proceeding, and it is the duty of the court to see that he is present when any charge is delivered to the jury.” In delivering the opinion of the court in the Wilson case Chief Justice Bleckley said: “There is nothing to indicate that it was his intention to be absent when any material step was to be taken in the trial; and before taking such a material step as recharging the jury, we are of opinion that the court should have seen and known that he was present, verifying the fact, if necessary, by ocular demonstration. The presence of the counsel was no substitute for that of the man on trial. Both should have been present.” In Tiller v. State, 96 Ga. 430 (23 S. E. 825), this court held: “ It was error, in the trial of a criminal case, to permit the solicitor-general to proceed with his argument to the jury while the accused was absent and confined in jail, he not having been admitted to bail. This is true although the presiding judge was not actually aware of the prisoner’s absence, it not appearing that any waiver of his presence, express or otherwise, had been made either by himself or his counsel.”

The above cases are in point under the facts of this case. It is well-settled in this State that one who is on trial for murder is entitled personally to be present at every stage of the trial, as held by the foregoing and other cases to the samé effect. See Frank v. State, 142 Ga. 741 (83 S. E. 645, L. R. A. 1915D, 817), et cit. There is nothing in the present case to indicate that the defendant waived his right to be present when the court, counsel, and jury went to inspect the automobile which had been offered in evidence. The ground of the motion for new trial recites that the defendant at the time was in the custody of the law, and he therefore could not go with the court and jury without the authority of the court. It is no answer to what has been said above to say that the court thought that the defendant was present with the court and counsel and jury when the automobile was inspected. It was the duty of the court to see by ocular demonstration, as expressed by Judge Bleckley, that the defendant was present. It was the right of the defendant to be present when the automobile was being inspected, in order to make any suggestions by himself or through his counsel with respect thereto that he might deem necessary or proper for his defense; and being detained in the court-house and being deprived of this important right, we are of the opinion that a new trial should be granted in this case.

In the case of Martin v. State, 51 Ga. 567, this court held: “When a jury, on the trial of a criminal case, have retired to consider of the verdict, and have been called back by the court to be recharged, it is the right of the defendant to have his counsel present, and he does not losé this privilege unless by a clear and distinct waiver thereof.” And see Brown v. State, 151 Ga. 497 (107 S. E. 536).

None of the headnotes, except the first, require elaboration.

Other assignments of error not specifically dealt with are without merit.

Judgment reversed.

All the Justices concur, except