State v. . Freeze

86 S.E. 1000, 170 N.C. 710, 1915 N.C. LEXIS 469

• Court: Supreme Court of North Carolina
• Decided: November 17, 1915
• Status: Published

Opinion

Hoee, J.

In S. v. Cherry, 154 N. C., pp. 624-626, in speaking of the right of a defendant to be present at different stages of the trial in capital and lesser felonies, this Court said: “It is the law of this State, a principle having prominent place in our Declaration of Rights, that in every criminal prosecution the defendant has the right to be informed of the accusation against him and to confront his accusers and their witnesses. Applying tbe principle, this Court bas beld in several cases that in capital trials tbis right to be present in tbe court below cannot be waived, but that tbe presence of tbe prisoner is essential at all stages of tbe trial. In felonies less tban capital, and in misdemeanors, tbe same right to be present exists, but may be voluntarily waived by tbe accused, a limitation being that- in tbe case of felonies certainly tbis Avaiver may not be made by counsel unless expressly authorized ‘thereto. S. v. Jenkins, 84 N. C., 812. Tbe decisions are also to tbe effect that when' the accused voluntarily absents himself, and more especially when be bas fled tbe court, such conduct may be considered and construed as a waiver, and in that event tbe presence of tbe accused is not regarded as essential to a valid trial and conviction,” citing S. v. Pierce, 123 N. C., 745; S. v. Kelly, 97 N. C., 404 ; S. v. Paylor, 89 N. C., 540; Clark’s Criminal Procedure, p. 423.

It does not appear from tbe record tbat tbe absence of tbe defendant, at tbe time tbe verdict was rendered against him was not voluntary on his part, and so amounting to a waiver of his right to be present within tbe principle of tbe above decision, save and except in bis assignment of error. Tbis being on defendant’s own assertion, it bas been held in numerous ca.ses tbat tbe averments of suck an assignment may not be considered in impeacbpient of tbe trial. McLeod v. Gooch, 162 N. C., 122; Worley v. Logging Co., 157 N. C., pp. 490-499; Patterson v. Mills, 121 N. C., pp. 258-268; Merrill v. Whitmire, 110 N. C., pp. 367-370; Lowe v. Elliott, 107 N. C., pp. 718-719; Walker v. Scott, 106 N. C., pp. 56-61; 3 Ed. Clark’s Code, sec. 550.

In most of these decisions tbe Court was passing on tbe consideration to be given to an assignment of error where tbe averments were not founded on a valid exception properly taken, but a perusal of these earlier cases will show tbat ordinarily tbe position also applies as to tbe facts stated in an exception taken by the appellant, when there is nothing in tbe record or statement of case on appeal to give them any support. Tbis being true, there is nothing in tbe present record, apart from defendant’s own statement in bis exception, to show tbat tbe verdict was in fact rendered in defendant’s absence.

Defendant bas been convicted after a fair and impartial trial. Tbe evidence fully supports tbe verdict, and no rea.son is shown why tbe judgr ment imposed by tbe court should hot be carried out.

No error.