State v. James , 116 S.C. 243 ( 1921 )

June 30, 1921. The opinion of the Court was delivered by This is an appeal from an order of Judge DeVore refusing to grant a new trial. The following is a statement of facts:

"The defendant was tried upon the charge of murder at the September, 1920, term of Court for Pickens County. The jury rendered a verdict of `guilty of manslaughter, with recommendation to mercy,' and defendant thereafter sentenced to serve three years in the State penitentiary at hard labor, or for a like period upon the public works of Pickens County. After the Court had charged the jury, and the jury had retired to their room, the defendant was carried to the jail by the sheriff without his request and against his will, and while said defendant was so confined in jail the jury returned into the courtroom and asked for further instructions with reference to the law of self-defense, and the presiding Judge charged the jury as to self-defense in the absence of the defendant, and sent them back for further deliberations, and said defendant did not waive his right to be present by counsel or otherwise. Thereafter the jury returned and announced that it had agreed upon a verdict and the presiding Judge had the defendant brought into Court and explained to the jury that he had charged them concerning self-defense in the absence of the defendant, and had the stenographer read the charge so delivered relating to self-defense in the defendant's absence, and requested that the jury hand in their verdict."

The exceptions are three in number, and will be set out in the report of the case. The exceptions must be sustained, and a new trial granted.

When the jury retired, the defendant was carried to jail against his will, and was there when the Judge charged the jury at their request. He had the right to be present, under the law of the land and the well-settled rule of public policy. Nothing can be done by the Court in a trial for felony, after the jury is sworn and impaneled, unless the defendant is personally present. He has a right to be present at every part of the trial proper to hear the evidence, to hear the Judge's charge, to see, know, and hear what the Judge says when he communicates with the jury, in answering their questions or further instructing them, unless he absents himself under such circumstances as was done in State v. Bramlett, 114 S.C. 389, 103 S.E. 755.

The defendant in this case was not absent voluntarily, at his request, and of his own volition, as Bramlett was, but was locked up and away from the Court when the Judge further instructed the jury. He had the right to be present under the decisions of this Court as announced in State v. Atkinson, 40 S.C. 368, 18 S.E. 1021, 42 Am. St. Rep. 877, and State v. Haines, 36 S.C. 504,15 S.E. 555. The presence of the attorney of the defendant was not a waiver on his part.

In a trial for capital felony, no waiver is binding on accused, unless he himself makes the waiver in open Court, and there are some constitutional privileges that he cannot himself waive. All exceptions are sustained, judgment reversed, and new trial granted.

New trial.