Henderson v. Town of Murfreesboro

McCulloch, C. J. This is a prosecution for violation of an ordinance of an incorporated town for the offense of assault and battery, and the defendant, Austin Henderson, was convicted in the circuit court on appeal from the court of the mayor, and his punishment fixed at a fine of one dollar. He appeals to this court. Defendant was a merchant in the town of Murfrees-boro, and is accused of committing the crime of assault and 'battery upon the person of-Cornelius Walker, a 'colored woman, while she was in defendant’s 'store. The evidence adduced by the prosecution tends to show that the defendant, without any provocation, took the woman by the collar,' choked her and used a vulgar and profane epithet toward her. The testimony adduced by the defendant tends to show that the woman was the aggressor and was disposed to make trouble in the store, and that lie merely told her to go on out and finally took hold of her because -she grew so abusive. (1) The defendant was not present in person, but by counsel, and filed a motion for continuance on the ground that the defendant was sick at his home and could not attend the trial. The motion is found in the transcript, but not in the bill of exceptions, and we can not consider it on its merits and must indulge the presumption that the court was right in -overruling the motion. The defendant was entitled to be present at the trial if he so desired, but the court may have found that the statements of the motion concerning the illness of the defendant were without foundation, and that the defendant had voluntarily absented himself and declined to come to court. This brings us to the question whether or not the • court had the power to try the defendant in his absence in a case in which the charge was- punishable by -fine only. In the case of Owen v. State, 38 Ark. 512, the defendant was charged with the offense of malicious mischief, which is punishable by both fine and imprisonment. The defendant was not present at the trial, and the -State demanded his presence and refused to go to trial without him. Thereupon the counsel for defendant offered to proceed to trial in his absence, but the court declined to permit that to be done, and dismissed the appeal for want of prosecution. In disposing- of the -case, this court said: “The statute provides that if the indictment be for a misdemeanor, the trial may be had in the absence of defendant, but that must be understood to apply to cases in which the accused consents to waive the right to be present.” In the -recent case of Cox v. City of Jonesboro, 112 Ark. 96, being a trial for misdemeanor punishable by fine and imprisonment we held that defendant had waived his right to be present by absenting himself after the trial began, but incidentally referred with approval to the statement in the Owen case, supra. The statutes of this ¡State provide that the trial of a misdemeanor may be had in the absence of the defendant. Kirby’s Digest, § 2340. It was not necessary to decide 'either in the Owen icase or the Cox case, supra, that the State could not demand a trial of a misdemeanor in the voluntary absence of the defendant, hut the language in those two opinions seems to lay that down as the law. The majority of the judges are unwilling to disapprove the language of those opinions, but distinguish the present case from them in that there is no punishment by imprisonment for the offense charged in this case. There is an important distinction. No jeopardy attached in a case tried under a charge merely involving punishment by .fine. The court may in such cases take the case away from the jury by peremptory instruction where the evidence of the guilt of the acused is undisputed. Stelle v. State, 77 Ark. 441; Roberts v. State, 84 Ark. 564. (2-3) It follows that in such cases, where the defendant voluntarily absents himself, the ¡State may demand a trial notwithstanding his absence, and no constitutional right of the defendant is violated. ' Of course, a party to any kind of litigation, either civil or criminal, is entitled to be present at his trial whether his own testimony is important or not, and it would constitute an abuse of discretion to force a trial in the involuntary absence of one of the litigants. If, however, the litigant is absent by his own connivance .or voluntary act, the court is not bound to await his pleasure but may proceed with the trial, except, as held in the cases referred to above, where he is placed in jeopardy under a charge involving punishment by confinement. We are of the opinion that since there is nothing in the record to show that the court abused its discretion in refusing to' continue the case, there is nothing left except the bare question of the court’s power to proceed in the 'defendant’s absence. It is insisted that the court erred in refusing to give an instruction submitting the right of the defendant to eject an intruder from his store; We do not think the testimony warranted the giving of an instruction in that form, for there is nothing to show that the defendant took hold of the woman for the purpose of ejecting her from the premises. If he took hold of her at all, it was not, according to the evidence, for the purpose of removing her from the store, ¡but 'because she had aroused his anger by disputing her account, and the disturbance she was making in the store by her conduct. ‘ Judgment affirmed.