Commonwealth v. Davis

17 Pa. D. & C. 488, 1931 Pa. Dist. & Cnty. Dec. LEXIS 367

• Court: Delaware County Court of Oyer and Terminer
• Decided: December 11, 1931
• Docket: No. 57 and 58
• Status: Published

Opinions

Bkoomall, J.,

— Defendant, a colored man, was tried on two separate indictments, with the usual three counts, for rape upon two white girls in Morton, this county, on two different occasions, about two weeks apart. He was very properly convicted by the jury, we think, on one indictment for assault with intent to rape, and on the other indictment for assault with intent to rape and statutory rape. It appears by an oversight the verdict of the jury was taken late in the evening in the absence of defendant and his counsel. Defendant at the time was confined in the county prison.

We now have before us motions for new trials on the sole ground that it was error to take the verdict in the absence of defendant.

We granted a rule to show cause why the record should not be amended to show the absence of defendant at the time the verdict was taken. This rule is made absolute so as to conform with the actual facts: Com. v. Silcox, 161 Pa. 484.

With the record so amended, however, the motions should be in arrest of judgment and not for new trials. We do not countenance this practice, but will, in view of the seriousness of the charge, dispose of the question involved under the law regardless of the motions filed.

Article r, Sec. 6, of the Pennsylvania Constitution of 1874 (PS p. 108) provides that “trial by jury shall be as heretofore,” and article one, section nine (PS p. 124), provides that the accused in criminal prosecutions has a right “to meet the witnesses face to face” and to “trial by an impartial jury.”

In cases which were at any time capital, the' appearance of the accused must appear as a matter of record: Jacobs v. Com., 5 S. & R. 815, 316. This right cannot be waived: Com. v. Silcox, supra. It applies to all stages of the proceedings : Pannell v. Com., 86 Pa. 260. Rape at common law was a capital crime: 4 Blackstone 211.

In all other eases, as distinguished from capital cases, the record need not affirmatively show the presence of the accused, and it will be presumed that the proceedings are regular. His presence will be presumed in burglary: Holmes v. Com., 25 Pa. 221, 224; and in larceny: Jacobs v. Com., supra. The presence of defendant is required for further instructions, and if he is not present the trial will be erroneous: Com. v. House, 6 Pa. Superior Ct. 92. The presence of defendant cannot be waived by his counsel: Prine v. Com., 18 Pa. 103.

If the absence of the defendant be voluntary, as where he is out on bail when the verdict is delivered, he will not be heard to take advantage of his absence: Lynch v. Com., 88 Pa. 189, 194; Com. v. Craig, 19 Pa. Superior Ct. 81; Com. v. Opolka, 69 Pa. Superior Ct. 230, 234. In the ease last cited the court said, referring to Prine v. Com., supra, “had the charge been a felony the conclusion might be different-.”

The defendant has a right to be present in a felony case when a verdict is rendered so as to have the jury polled if he desires to exercise such privilege: Com. v. Twitchell, 1 Brewster 551; Taylor v. Com., 44 Pa. 131.

In the case of Com. v. Gabel and Gabel, 79 Pa. Superior Ct. 59, 62, quoting President Judge Rice in Com. v. House, 6 Pa. Superior Ct. 92, it is stated: “No Pennsylvania case has held, or, as we firmly believe, ever will hold, that a defendant, whether indicted for a felony or a misdemeanor, can be tried in his absence, unless he has expressly or impliedly waived the right to be present.” This proposition cannot be questioned, nor can it be said that the trial is completed until the verdict is rendered. It, therefore, follows that a defendant in any case, whether it be for a felony or a misdemeanor, where he is confined in jail, must be brought into court, if he is returned to the jail during the deliberations of the jury, to hear the verdict of the jury when it is rendered. If a defendant is out on bail in other than a capital case, he may expressly or impliedly waive the right to be present, but in capital cases at common law he must be in court when the verdict of the jury is rendered.

And now, to wit, December 11,1931, new trials are hereby granted.