State v. Hope

100 Mo. 347

• Court: Supreme Court of Missouri
• Decided: October 15, 1889
• Status: Published

Opinion

Barclay, J.—I.

The points made by defendant upon the rulings of the trial court on the evidence are not well taken. Most of these rulings were made over objections to testimony which assigned no ground or reason for excluding it.

Section 1907 of our statutes concerning criminal procedure (R. S. 1879) declares that: “The provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute.”

This has been a part of the law of Missouri from a date as early, at least, as 1835. It has been re-enacted repeatedly in the various revisions of the statutes that have taken place since then. Its language to-day is substantially, if not identically, the same that it has been for some fifty years. R. S. 1835 [3 Ed.] p. 490, sec. 15; R. S. 1845, p. 880, ch. 138, sec. 16; R. S. 1855, p. 1191, ch. 127, sec. 18; Gen. Stat. 1865, p. 850, ch. 213, sec. 17; R. S. 1879, sec. 1907; R. S. 1889, sec. 4207.

In civil cases it has been uniformly ruled by this court, from a very early period of its history, that it is not sufficient for the purposes of review to object generally to improper testimony when offered, but that the grounds must be stated to the court with the objection. Fields v. Hunter (1843), 8 Mo. 128; Roussin v. Ins. Co. (1851), 15 Mo. 244; Clark 13. Conway (1856), 23 Mo. 438; Weston & Plattsburg Railway Co. v. Cox (1862), 32 Mo. 456; Lohart v. Buchanan (1872), 50 Mo. 201. That rule has thus become a fixed part of our jurisprudence governing the trial of civil causes, and must be regarded as having been in contemplation of the law makers when the revision of the statutes, alluded to, occurred.

Section 1907 (R. S. 1879) should, therefore, be considered as having been re-enacted from time to time with the then prevailing rule relative to the examination of witnesses in civil cases as part of it, in accordance with an established principle of interpretation of laws. Sanders v. Anchor Line, 97 Mo. 27.

We hence consider it necessary in criminal, as well as in civil, causes, for a party, objecting to the admission of testimony, to state opportunely the reasons for the objection in order to preserve the ruling for review should it be adverse to the objector. If the ruling be favorable to the latter, however, and thus the evidence be excluded, generality in the objection would furnish no cause for reversing the ruling of the trial court. It would be sustained, if defensible, on any grounds. In State v. O'Connor, 65 Mo. 374, views are expressed somewhat at variance with those above indicated. In so far as they conflict that decision should no longer be regarded as authoritative.

II. Referring to the other rulings of the trial court on the evidence, as to some, no exceptions were saved which precludes reviewing them, as this court has often held; and as to others the objections were interposed too late, that is to say after the testimony had been admitted, unchallenged, in response to pertinent questions. A party cannot, in general, demand the exclusion of evidence called out in fair response to questions asked without objection. Nothing exceptional is shown here affecting the application of that rule.

When the legal objection to testimony is not apparent from the question that educes it, but is developed later in any way (for instance on cross-examination), the omission to object, at the time it came in, is no waiver of the right to have it excluded. It is only when the exceptionable nature of the testimony has become apparent that the failure to object may constitute a waiver of objection. The reason of this rule is thus stated in a recent case : “To allow a party to permit, without objection, the admission of evidence, and for the first time make his objection in instructions would be intolerable practice. If he had an opportunity to interpose an objection, he cannot take the chances that the testimony will be favorable to him and when it turns out otherwise raise his objection, but must be held to have waived it.” Maxwell v. Railroad (1884), 85 Mo. 95.

The rule itself merely involves an application of the principle frequently declared of late that, on appeal, parties are bound by the theories of law they asserted or acquiesced in at the trial. Whether such theories take the form of instructions asked (M. Forster Co. v. Guggemos, 98 Mo. 391), or of instructions unexcepted to (State v. Griffin, 98 Mo. 672), or of rulings on evidence, the nature of which is clear at the time, we think the principle equally applies.

In the case before us it appears that defendant’s objection to the testimony of witness Zugg in rebuttal (to the effect that defendant was generally reputed to be quarrelsome) was .that the question eliciting it did not fix any time with reference to the difficulty. The objection itself was not valid. The question, by the use of the present tense, did fix the time as that of the trial; but construing it broadly as an objection to receiving the testimony because it did not fix the time at that of the difficulty, then it was too tardy for recognition under the rule we have discussed.

Moreover, defendant made the same inquiry, as that against which his objection under discussion was directed, during the examination of his witness, Mr. Riley, and interposed no objection to the same question when asked Mr. Goslin, a prior witness for the state. (The statement preceding this opinion presents the exact language used in each of these instances.) There is respectable authority for holding that either of these acts on defendant’s part was a waiver of the objection in question. Hinde's Lessee v. Longworth, 11 Wheat. 206; Haydon v. Palmer, 2 Hill. 205; Gale v. Shillock, 29 N. W. Rep. 661; McCormick v. Laughran, 16 Neb. 87. But without expressly deciding that point we think the trial court committed no reversible error in the ruling, considered in all its bearings.

III. The next assigned error rests on the claim that a witness testified on behalf of the state at the trial without having first been sworn. No objection on this ground was made at the hearing. It appears for the first time in a motion for a new trial and nothing in the record shows when the fact was discovered by defendant or his counsel. Had the point been suggested when the witness began his statement or during his examination, the irregularity or oversight of permitting him to testify, unsworn (if it existed), could have been easily and promptly rectified. But it was not suggested. After the witness had been examined in chief, he was fully cross-examined , on the part of defendant. Thus was he treated by both parties as in all respects fully qualified to testify.

It has been held by other courts, as well as our own, that, where an oath is requisite to qualify a person as a trier of the facts or of law, it may be waived by the competent parties in interest, either expressly (Howard v. Sexton (1850), 4 N. Y. (Comst.) 157; Tucker v. Allen (1871), 47 Mo. 488; Grant v. Holmes (1881), 75 Mo. 109), or by going forward in the matter without inquiry or objection'. Arnold v. Arnold (1866), 20 Iowa, 275; Merrill v. St. Louis (1884), 83 Mo. 244; Cochran v. Bartle (1887), 91 Mo. 636.

We think the principle, on which these rulings are based, is applicable also to the case of a witness in the circumstances here shown. Lawrence v. Houghton (1809), 5 Johns. 129. This assignment of error has been’ considered on the assumption that the facts alleged were as claimed by defendant, but it is not thereby conceded that an affidavit accompanying a motion for new trial, though uncontradicted, is necessarily to be accepted as establishing the facts it recités, where they are such as have occurred in the immediate presence of the court.

IY. The record shows that the defendant was “ wilfully and voluntarily absent ” when the verdict of the jury was returned in open court, though his counsel was present at the time and defendant had been personally in attendance, until then, during the entire trial. He was afterwards brought in and the sentence of the court was pronounced in his presence, after his motions for new trial and in arrest had been overruled.

By section 1891 (R. S. 1879), in force when the alleged offense was committed and when the trial of defendant occurred, it is provided as follows: “No person indicted' for a felony can be tried unless he be personally present during the trial; nor can any person be tried or be allowed to enter a plea of guilty in any other case unless he be personally present, or the court and prosecuting attorney shall consent to such trial or plea in the absence of the defendant; and every person shall be admitted to make any lawful proof by competent witnesses or other testimony in his defense; provided, that in all cases the verdict of the jury may be received by the court and entered upon the records thereof in the absence of the defendant,- when such absence on his part is wilful or voluntary, and when so received and entered shall have the same force and effect as if received and entered in the presence of such defendant; and provided further, that, when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.”

The provisos in this section first became a part of our law at the revision of 1879. Prior to that time, and ever since 1835, the statute declared that “No person indicted for a felony can be tried unless he be personally present during the trial,” etc., omitting any such qualifications of that rule as are contained in the provisos of the present law. E. S. 1835; Gen. Stat. 3865,'p. 850, sec. 15. While the statute was in that form prior to the revision of 1879, this court had held it error to receive a verdict in the absence of defendant even though he had escaped from custody after the cause had been submitted to the jury. State v. Buckner (1857), 25 Mo. 167; State v. Braunschweig (1865), 36 Mo. 397. It had further been held that the record must affirmatively show the presence of defendant at the rendition of the verdict (State v. Cross (1858), 27 Mo. 332; State v. Dooley (1876), 64 Mo. 146), though in some instances that fact had been taken as established by inferences from other entries in the record. State v. Schoenwald (1860), 31 Mo. 147; State v. Lewis (1878), 69 . The important change made in the statute by the revision of 1879 (sec. 1891) was probably induced by a consideration of the decisions mentioned. In view of the history of the law on the subject, there can be no doubt of the legislative purpose in the amendment. It was, among other things, to prevent a defendant from securing a mistrial and continuance by escaping if in custody or absconding if on bail, after the cause had been submitted to the jury and before verdict rendered. Whether that purpose was accomplished will appear presently.

The language of the law so plainly sanctions the reception of a verdict by the court in defendant’s absence, when wilful or voluntary, that no difference of opinion is likely to arise as to its meaning. The difficulty, if any there be, appears upon the suggestion that the enactment in question may be in conflict with the organic law, particularly with that section of the Bill of Rights which declares that “in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face,” "etc. Const. 1875, art. 2, sec. 22.

The statute, in permitting a verdict when defendant is voluntarily or wilfully absent, evidently procee'ds on the assumption that by such wilful or voluntary absence the defendant waives the right to be present, which, otherwise, he might constitutionally insist on. Is such waiver valid %

In considering this' question, we start from the postulate that the courts will not declare a statute unconstitutional unless it is manifestly so, and that all fair and reasonable doubts on that point will be resolved in favor of its constitutionality. The presumption is that the legislature acted within the proper sphere of its powers, and, until the contrary is clearly and satisfactorily made to appear to the court, the law will be upheld.

That the accused, may waive some rights secured by the constitution, is a proposition supported by the authority of so many adjudicated cases that a citation of them now seems unnecessary. But there is great diversity of opinion respecting the particular constitutional rights that may be waived. Numbers of cases hold that certain rights cannot be waived by the accused, for reasons of public policy. It would probably tend to confuse, rather than to elucidate, the present case to attempt any summary of the principles applicable to the waiver of constitutional rights generally. The issue actually before us requires only a decision upon the validity of a waiver, by defendant’s own act, of his right to be personally present at the rendition of the verdict.

Defendant undoubtedly has a right to be heard, and, for that purpose, to be present when the verdict against him, on a charge of felony is given; but, if, being on bail, he sees fit to run away at that stage of the trial, on whom shall the consequences of such misconduct fall ?

It is a “fundamental legal principle” of far-reaching scope in its practical application (N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591; Reynolds v. United States, 98 U. S. 161; Riggs v. Palmer, 115 N. Y. 506), that ‘ ‘ no one should have an advantage from his own wrong.” Co. Litt. 148b; Broom’s Leg. Max. [8 Ed.]. Yet, to hold that, in such a state of facts as we have supposed, defendant, during his wilful absence, retains the right, while he endeavors to increase the impossibility, of his being heard in the cause, would seem to us a clear instance of giving him a great advantage from his own wrong. The maxim is founded on principles of common fairness and good faith, as is, also, the idea expressed in section 1891, that defendant, by voluntarily withdrawing from the court when the verdict is rendered, should be held to relinquish the right to be present and heard, which, but for his own wrongful act, he might freely enjoy. In such case, he is deprived of no right. He merely refuse's to avail himself of one, just as he may, in various ways, waive his constitutional right to confront the witnesses against him, under repeated rulings of the court. State v. Wagner (1883), 78 Mo. 644; Merrill v. St. Louis (1884), 83 Mo. 252; State v. Houser (1858), 26 Mo. 431.

In State v. Smith (1886), 90 Mo. 37, the present statute was considered, and no intimation of its unconstitutionality was made. In other cases it has been further held, even under the old statute (Gen. Stat. 1865, p. 850, sec. 15), that defendant’s absence at the trial during part of the argument of counsel to the jury was not a prejudicial error requiring a reversal. State v. Bell, 70 Mo. 633; State v. Grate, 68 Mo. 22.

In other states, without such a statute as our present one, and under constitutional provisions, in most instances substantially like those in force here, it has been repeatedly held that where defendant was absent by his own voluntary act (e. g. by escape or by absconding while on bail), at the rendition of verdict in cases other than capital, the court might properly receive it, notwithstanding his absence. Sahlinger v. People, 102 Ill. 241; State v. Kelly (1887), 97 N. C. 404; Price v. State (1858), 36 Miss. 531; Gales v. State (1886), 64 Miss. 105; Barton v. State (1881), 67 Ga. 653; Hill v. State (1864), 17 Wis. 675; Fight v. State (1835), 7 Ohio, (part 1) 181; Jackson v. State (1887), 49 N. J. L. 252State v. Peacock (1887), 50 N. J. L. 34; Lynch v. Com. (1878), 88 Pa. St. 189.

The principle on which'these decisions rest has been declared in others in its application to different phases of court proceedings in criminal cases. People v. Bragle (1882), 88 N. Y. 585, as explained in People v. Lyon (1885), 99 N. Y. 224; United States v. Davis (1869), 6 Blatchf. 464; State v. Paylor (1883), 89 N. C. 539.

We do not think the court loses jurisdiction of the cause by reason of defendant’s getting beyond the coniines of the court room when the verdict comes in. State v. Kelly (1887), 97 N. C. 404. If that were the effect of such action on his part, the court would not have power to enter an order for his arrest thereafter so long as he remained away. That result certainly could not have been intended by the constitutional provision in question as now worded.

In interpreting the fundamental law of the state, it is proper to consider the effect and consequences of any proposed construction of it in ascertaining what was probably the intention designed to be expressed by the instrument. Constitutions like other laws are governed by established rules of interpretation and among others by that just mentioned. To hold that the flight of defendant while on bail, just before verdict, must necessarily produce a continuance of the cause would make it possible for any one able to give bond, by repeating that performance at each successive trial, to finally defeat the ends of justice. Such conduct would not deprive defendant of his constitutional right to bail, or of his freedom of action during every recess of the court while the trial lasted; but (if now sanctioned here) it would introduce a new and novel mode for securing continuances, having some advantage over the ordinary methods heretofore in use. It would have at least the merit of simplicity.

But we do not think those who framed, or the people who adopted, the constitution contemplated such a construction of it in this regard as would make it ever possible for any defendant in a criminal case to avoid and escape altogether a verdict, otherwise just and correct, by any such acts of his own. We believe that no language used in that instrument will bear a construction which would make such results possible.

We are of opinion that section 4191, Revised Statutes 1889 (R. S. 1879, sec. 1891), in so far as it relates to the subject under discussion, is entirely constitutional, and that the trial court committed no error in proceeding in accordance with its terms.

We find no error in any of the rulings of tbe court, to which, exceptions were saved, in the giving or refusal of instructions, and after a careful examination of tbe record observe nothing calling for further remark.

The judgment is affirmed for the reasons stated,

with the concurrence of all the members of the court, except Sherwood, J., who dissents.