Hunt v. State , 248 Ala. 217 ( 1946 )

The order of the court appointing practicing physicians of medicine to examine the defendant was made on motion of the state's solicitor without the presence of the defendant and his attorneys in court and without notice to them after defendant's arraignment and pleas of "not guilty" and "not guilty by reason of insanity" had been interposed. And defendant's attorneys were not present or given the opportunity to be present during the examination by said physicians.

Due process of law requires that the defendant be present in court by himself and his counsel during every step of the proceedings, with the right to be heard in respect thereto. Hence the order of the court and the appointment of said physicians was improvident, irregular and erroneous, and its use should not be permitted as a vehicle for furnishing evidence against the defendant on trial for his life. People v. Dickerson, 164 Mich. 148, 129 N.W. 199, 33 L.R.A., N.S., 917, Ann.Cas.1912B, 688; 71 A.L.R. 1017. In cases where the death penalty is inflicted the law imposes the duty on the court to examine with great particularity the proceedings, and to see that the defendant is not denied any constitutional right. The automatic appeal statute imposes the duty on the court to examine the record and the evidence offered against him, though there is no motion for a new trial made by him. Easley v. State, 246 Ala. 359, 20 So.2d 519; Fisher v. United States of America, 66 S.Ct. 1318; Patterson v. State, 287 U.S. 45,53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

In my opinion the judgment of the circuit court in this case should be reversed and the cause remanded for a new trial. The faith of the people in the judgments and proceedings of courts of justice must be preserved and this cannot be done unless due process of law is strenuously maintained and observed. I, therefore, respectfully dissent from the opinion and conclusion of the majority.