DocketNumber: 6 Div. 942.
Judges: Simpson
Filed Date: 3/2/1943
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 93 The defendant was indicted and tried for a capital felony. It was charged that he "did carnally know, or abuse in the attempt to carnally know Elese Lee, a girl under the age of twelve years," etc. The statute prescribes punishment of imprisonment in the penitentiary or death, at the discretion of the jury. Code 1940, Title 14, Sec. 398. *Page 94 The jury assessed punishment in the case at fourteen years imprisonment.
The verdict returned was not received in open court in the presence of the defendant, as the law requires, but, to the contrary, was delivered in a sealed envelope to the bailiff after court had adjourned and in the absence of the judge and the defendant. The jury was thereupon allowed to disperse and were never again reassembled.
It has been uniformly held by our appellate courts that, in a felony case, a verdict rendered in the absence of a defendant is a nullity, in fact is no verdict, and if so rendered and there is an unauthorized discharge of the jury, this results in the acquittal of the defendant. Whitehurst v. State,
The record must affirmatively show the prisoner's presence at each successive step in the trial. Young v. State,
It was declared by this court in the Whitehurst case,
Cases by our Supreme Court (supra) are of like tenor. In Cook v. State,
Hence the purport of the holdings of all of our cases is that, in felony cases, the personal presence of the defendant when the verdict is rendered is absolutely essential and if he is not present the verdict is entirely a nullity. Hemust be (not is entitled to be) present at the rendering of the verdict. Thus was the language of the opinion by the late and learned Chief Justice Anderson of our Supreme Court in the Wells case,
The learned Attorney General, in sponsoring the sustention of the action, here, of allowing the receiving of the verdict and the discharge of the jury after adjournment of court and in the defendant's absence, does not seriously question the correctness of the foregoing principles, but contends that the defendant waived the right to claim such invalidity by his previous consent and request that the verdict be returned in his absence. (The record does not show that he consented that the verdict be received by the bailiff after adjournment of court or in the absence of the judge.)
The inquiry, then, is whether or not the defendant may — or can — juridically divest himself, by consent or waiver, of this constitutional protection (and it has been held to be a constitutional right, State v. Hughes,
210 P. 756; Riddle case, supra; State v. Thompson,
A difference of opinion may prevail elsewhere as to this question (14 Am.Jur., p. 909, Sec. 203, West's Digest Series, Crim. Law, 636(8)), but it seems settled by the foregoing Alabama authorities that in a felony case, the personal presence of the accused at the rendition of the verdict by the jury cannot be dispensed with. The phraseology of the opinions in these cases, and others of similar holding dealing with the subject, is too clear and strict to admit of other interpretation. As instances: In the Cook (a felony) case,
If so, and the proceedings are void when the verdict is otherwise rendered, then it is not conceivable that the consent or waiver of the defendant can give life and effect to that which was inherently void and a nullity.
Likewise, in Wells, supra, the clear and positive inference is made that a defendant, in a felony case, cannot waive hispersonal presence, (1) where it was said that counsel could not waive it — and we perceive no distinction in principle whether acting by himself or through counsel — and (2) where it was stated: "The foregoing rule relates to the trials of misdemeanors, as well as felonies, except the defendant may waive the right to be present when the verdict is returned and other formalities connected with the return and reception thereof in misdemeanor cases." (Our italics.)
Thus, of course, the converse follows that in felony cases he cannot waive this right.
If the foregoing opinions by eminent Justices of our Supreme Court are to be our guide (and they must be, Code 1940, Title 13, Sec. 95), then the conclusion must result that the verdict of the jury here, as in the cited cases, was a nullity — was void — and totally ineffectual to support the judgment of conviction. This, too, upon the general principles hereinabove stated, without reference to the fact that the defendant in this case was tried for a capital crime.
Erudite discussion of the rule is found in the case of Noell v. Com.,
See also Hopt v. Utah,
In the present — a capital — case, the correctness of our conclusion is certainly not subject to successful challenge.
The almost universal rule is — and in Alabama the law has always been — that "the right to be present during the trial of an indictment for felony cannot be waived by accused in a capital case." 23 C.J.S., Criminal Law, § 975, p. 309, 310, id. note 39, p. 310; State ex rel. Battle,
Before this rule was applied in all felony cases, it was regarded by our courts as axiomatic in the trial of capital cases. The observation in the case of State ex rel. Battle,
Similar pronouncements are found in other cases cited supra, notably Waller v. State. The essentiality of the personal presence of the defendant at the reception and rendition of the verdict in such cases *Page 96 seems to be jurisdictional and, if so, of course non-waiverable. And, as will be seen from a review of the authorities, this rule generally prevails in a capital trial, regardless of the punishment ultimately fixed in the verdict of the jury. The test is: Was the defendant tried in a capital case?
A capital case is a criminal case in which a person is tried for a capital crime, Adams v. State,
In speaking of this rule of non-waiver in a capital case, the Court of Appeals of New York (which, by the way, holds to the majority view that in non-capital felonies a defendant can waive his presence during trial) observed: "In capital cases it is held that even though the defendant has waived his right to be present, a verdict rendered in his absence, or after a trial from which he has been absent is defective and the conviction must be reversed." People v. La Barbera,
And the Supreme Court of Mississippi (which now seems to have changed the rule because of a statute authorizing such waiver) had this to say of the general rule of non-waiver in a capital case: "Wherever the charge is a capital one, the courts have held uniformly, in favorem vitae, that the defendant cannot waive his right to be present, and that whether he be in jail, subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence." Sherrod v. State,
And in speaking of the immateriality of the punishment assessed in such a case, the discussion concluded that: "Of course, it is entirely immaterial that the verdict in this case was for manslaughter. The test is, Was the charge in the indictment a capital one?"
This is the situation in the instant case. The defendant was tried in a capital case. The charge in the indictment was a capital one, punishable by death, at the jury's discretion. Code 1940, Title 14, Sec. 398. Hence, it was fatal and vitiating error to receive the verdict in absence of the defendant, and a reversal must be entered.
We confess our reluctance in so ruling here where a generous and considerate court allowed this unusual procedure to be undertaken as a convenience to the defendant. But the law must rule all cases alike. Consistency in just judicial pronouncements must be maintained. The principle, "stare decisis et non quieta movere", is firmly embedded in our judicial fabric. Temporal winds of expediency in law trials should not be permitted to invade our fundamental rules. Whatever may be the trend of modern decisions elsewhere, it is to be hoped that our own courts will not forsake the ancient landmarks which sought to establish due safeguards for the unfortunates on trial for serious criminal offenses. Our learned forbears jealously guarded and preserved a just and fairly workable system of criminal trial. It is a part of our canonical structure — and in felony trials nonwaiverable — that a defendant must be personally present at every important step in his trial, including that crucial juncture where the jury returns a verdict against him. The question of injury to him should not and does not control. To depart from this safe status would embark us upon that other sea — dangerous, we think — of judicial interpretation where it is now the law that a defendant by consent or waiver may be tried and convicted in his absence, and, if such be the jury's verdict, the final result, death in expiation for his crime. This would indeed be an innovation in Alabama procedure, shocking perhaps to laymen. The rule in some other jurisdictions to the contrary *Page 97 notwithstanding, it has never been approved here. We hope it never will be.
The contention that the defendant has been acquitted because of the discharge of the jury upon the rendition of the verdict — even though void — is untenable.
The cases (Wells, supra, et al.) which state the rule base it upon the principle of double jeopardy. Here, however, the defendant cannot claim its protection. The jury was discharged with his consent and request previously given. As observed in Gunter v. State,
So, where the error in receiving the irregular or void verdict is consented to or induced by the defendant, he is not entitled to an acquittal but only to a reversal of the conviction. Under such circumstances, it is considered that he has waived (which he may do, it being a personal right) immunity from second jeopardy. 22 C.J.S., Criminal Law, § 245, p. 382; Id, Criminal Law, § 277, p. 412.
There are other analogous Alabama cases declaring the same principle. Apposite is Hughes v. State,
In that case, the defendant agreed in advance to the discharge of the jury in event of a certain contingency. In binding the defendant to this agreement and as waiving the right to claim jeopardy by the jury's discharge, it was held: "There can be no distinction in principle, between a consent given before the trial, that, upon the occurrence of a certain contingency during the trial, the jury shall be discharged, and a consent to the discharge of the jury given at the time when the discharge is ordered. If the defendant have capacity to bind himself by the consent in the latter case, he may in the other."
See also Lewis v. State,
The defendant's status is the same here. The jury having been discharged with his agreement previously given, he has waived his right to claim jeopardy because of the discharge of the jury after rendering the abortive verdict aforesaid. He is, therefore, not entitled to an order of discharge, but merely to a reversal of the judgment of conviction.
No contention was made by the evidence that the defendant was guilty of actual carnal knowledge of the girl. The evidence supports the inference, however, of abuse of her genital organs in the attempt at carnal knowledge. This latter offense is as equally proscribed by the statute. An injury to the child's sexual or genital organs in such attempt is the abuse to which the statute refers. Dawkins v. State,
The crime may be committed with-out any contact of the genital organs. The principle is illustrated by this quotation from the Dawkins case,
In Castleberry v. State,
In the case at bar, it was proven for the State that the defendant came to the child's bed and put his hands on her private parts, and that, when he did, it "hurt" her; that this occurred several times and that he said he would kill her if she told it. The doctor's testimony showed without controversy that these organs had been seriously abused, as that term is used in the statute. True, as to what the defendant was attempting, or intended, to do when he did these things is left to inference, but it is a strong one against him. If the child's testimony was true — and this was exclusively for the jury — then the jury was reasonably justified in drawing the inference that such conduct was leading up to and was the initial stage of the attempt at carnal knowledge. In fact, we can conceive of no reasonable view, or inference, to the contrary.
Concededly, this is one of those borderline cases where a certain phase of the positive proof was more or less weak and inconclusive — i. e., as to the attempt at carnal knowledge — but as stated the evidence adduced supports strongly the inference that such were the defendant's actions. In fact, what else was the defendant attempting by his several "touchings" with his hands of the child's privates? No other reasonable inference is deducible.
The rule to test the sufficiency of the evidence to avert the general charge for the defendant is, as is well understood, that it afford inference adverse to him. Kabase v. State, Ala.App.,
It is our view that the general affirmative charge for the defendant was correctly refused.
It was proper to offer evidence of more than one such occurrence between the defendant and the child. The State is not restricted to proving only one such act. Evidence of such acts before and after — provided not too remotely connected, in point of time, to — the alleged act on which the prosecution is based, is provable as bearing upon the improper relation and intimacy of the parties, thereby tending to sustain the principal charge. Harrison v. State,
The victim of the present alleged abuse was the defendant's daughter. Under the rule discussed and declared in the case of Wilkins v. State,
Recent discussion of the rule governing the admissibility of evidence of other similar acts and crimes as the one upon which the prosecution is based, as bearing upon the motive, intent, scienter, identity, etc., may also be found in Henry Daniels, Jr. v. State,
It is contended that, because of the overwhelming weight of the evidence against the verdict, a new trial should have been ordered, but, as to this, we do not think the trial court's conclusion should be overruled. It can be said for the defendant that there might be plausibility to his claim that the whole case was inspired by the antagonism of his two older daughters, engendered because of his chastisement of them for their alleged infractions of the rules he had prescribed for their proper conduct. But this was strenuously denied by the daughters and the truth of these respective claims between the members of this unfortunate family was for the jury, and not for an appellate court, to decide.
We are impressed that the rulings upon the evidence pending trial were free of any error prejudicial to the defendant. On the contrary, these rulings evinced astuteness and a full grasp of the pertinent principles of law by the learned trial judge.
For the error hereinabove noted, however, we think the judgment should be reversed and the cause remanded.
Reversed and remanded.