Ellerbe v. State

Whitfield, J., delivered the opinion of the court. The appellant was tried for murder, convicted and sentenced to imprisonment in the penitentiary for life. During the trial, whilst one of the counsel for the appellant was making his argument to the jury, the circuit judge left the bench, calling Mr. Bozeman, a member of the bar, to preside in his absence, with the consent of part of the counsel for the state and the defendant, and then left the courthouse. During his absence, a heated, excited altercation occurred between one of the counsel for the state, Judge Fewell, and one of the counsel for the defendant, Mr. Ethridge, then addressing the jury. What occurred, as developed by the testimony on the motion for a — 527 — new trial, was this, says one of the witnesses: “Mr. Ethridge said in his argument that Mr. Hoffer had stated to W. W. Henry, a member o‘f this bar, that he, Hoffer, was a witness to the tragedy. He then discussed the failure of the state to introduce Mr. Henry, and he further discussed and criticized the state for objecting to the introduction of Mr. Henry as a witness on the part of the defense. At this point he was interrupted by Judge Fewell, of counsel for the state, who denounced Mr. Ethridge’s argument as being outrageous. There was a clash of words between Mr. Ethridge and Mr. Fewell. But -finally Mr. Ethridge said, ‘ I will take it back. ’ All or a part of it, I am not sure which. I am not sure what he said. Captain Fewell, however, tried to invoke a ruling from Mr. Bozeman, who at that time was' occupying the chair of the judge. Mr. Bozeman said he was not sufficiently advised as to what was the testimony in the case to rule on it, but he thought the matter had been settled by the withdrawal of the language objected to. Judge Fewell, however, insisted that the matter was not settled, and that he wanted a ruling. But, at about this juncture, one of the jurors retired from the box, and, before Mr. Ethridge resumed his argument in the case, and before the juror returned to his seat in the box, Judge Huddleston, presiding judge in the case, had returned to the courtroom from a temporary absence. ’ ’ Another witness testifies that “when Mr. Ethridge retracted the language, Captain Fewell then said, 'No, sir; you shan’t do it,’ and, looking up to the bench, called for the court, and appealed to Mr. Bozeman, saying, "You, sir, are a lawyer, and ought to know better.’ I don’t know how that was expressed; don’t remember exactly how that was. Mr. Bozeman then remarked that the judge would be back in a little while, and that was the end of the matter.” This witness also testified that Henry’s testimony had been excluded by the court in the absence of the jury, who never heard it. He also testified that Judge Hud-dleston had gone to Walker & Hall’s building, to see Mr. — 528 — Schansberger, whom he said was sick, and that the building was between two hundred and fifty and three hundred yards irom the courthouse. Judge Huddleston testified that he went to see a sick friend, Mr. Schansberger, to get him to go up to his house, he being dangerously sick. He saw him, talked in the Higgin’s building with him, trying to get him to go to his house, which he declined to do. He then went into Mr. Amis’ office, in an adjoining room, and sat down to smoke a cigar; that he smoked nearly half of it, walked down the stairway, and started in the direction of the courthouse, and met a party who advised him there was an altercation between counsel in the courtroom. He states, further, that he observed the time when he left the bench, and when he got back to the foot of the stairway leading up to the courtroom, and noted that, up to that time, he had been .absent from the bench eighteen minutes. We have, thus, the case of a circuit j udge leaving the courtroom in the progress of a trial for murder, going to a building some two hundred and fifty or three hundred yards away, leaving the court in charge of a member of the bar called to the bench to preside in his absence, and being gone about twenty minutes — a heated altercation occurring, meantime, between counsel, in the hearing and presence of the jury. It is not the case of a circuit judge being absent a few moments from necessity, suspending, as he should, all proceedings in his absence, but a clear and manifest case of temporary relinquishment of the control of proceedings, which were not suspended, but going forward with a member of the bar presiding as judge, in the way above shown. In Turbeville v. State, 56 Miss., 798, 799, the circuit judge merely retired from the bench to a room immediately adjoining, and in the rear of the bench, and separated from it only by the thickness of the wall, through which a door opened. He placed a member of the bar on the bench, with instructions to call or notify him if needed. He remained in this room, thus absent from the bench, and distant from it five or six feet — 529 — only, during the greater part of the argument to the jury. The court say: "If we could consider this statement of the facts as showing such absence from the room on the part of the judge as constituted even a temporary relinquishment of the control of the court, and of the conduct of the trial, we should unhesitatingly reverse the judgment. There can be no court without a judge, and his presence, as the presiding genius of the trial, is as essential during the argument as at any other time. We do not mean to say that he must actually listen to every word that falls from the lips of counsel while they are addressing the jury, for this might impose a burden too heavy to be borne, but we do mean that the conduct and control of the argument, within legitimate limits, is confided to him as a judicial duty, and cannot be by him devolved upon another. While he will not be precluded from changing his seat to any portion of the room he may prefer, or from temporarily engaging in conversation or reading or writing, he must remain within hearing of counsel, so as to be able instantly to assert his authority, if demanded by anything that may occur. While it will rarely be necessary or proper for him to interfere with counsel, instances may arise that will require it, and, moreover, the conduct of the jurors, spectators or officers of court may be such as to demand the instant interposition of his authority. In civil cases or prosecutions for misdemeanors, he may give place to another, by consent, and, if he does so' without objection in advance, consent will perhaps be presumed; but in prosecutions for felonies, no consent can be given, and, if given, it will not be binding on the accused.” These words could not be more apt if this court had been considering this case. Here, it is idle to say that the circuit judge remained "within the hearing of counsel so as to be able instantly to assert his authority.” Beyond all cavil he had abandoned the control of the court and the conduct of the trial temporarily to Mr. Bozeman; and here a signal illustration of the wisdom of the rule announced in Turbeville’s case — 530 — is furnished. We have given this proposition the most anxious consideration. We have failed, after exhaustive search, to find a single authority that would support us in disallowing this assignment of error, and neither the attorney-general nor the exceptionally able and learned counsel representing the state in conjunction with the attorney-general, refers us to a single authority which disapproves the rule announced in Turbeville v. State, in harmony with which also is Peter v. State, 6 How. (Miss.), 326. On the contrary, the authorities elsewhere uniformly sustain that rule. In People v. Dohring (59 N. Y., 374), reported in 17 Am. Rep., 349, at p. 353, bottom of the page, the supreme court of New York expressly affirms the rule in the Turbeville case that the judge must be where it is ‘ ‘ physically possible for him at any moment, on the arising of a question ’ ’ calling for his decision, to be present find make it. In Meredith v. The People, 84 Ill., the judge of the court was in the courthouse, but in a different courtroom, trying another case, after having heard all the evidence in a murder case, and then having called two members of the bar in succession to the bench to preside in the murder case during the argument of counsel, himself having gone back several times to the courtroom where the murder case was being tried, the court said, page 482: “It is no less error than if he had been in another county. . . . The argument of a cause is as much a part of the trial as the hearing of evidence. It is a right in his defense secured by the law of the land, of which a citizen cannot be deprived. . . . The decision is not affected by the consideration that the judge was present a part of the time during the argument of the case. If he could be absent during any part of the trial, and his official duties could, during such time, be performed by a member of the bar, on the same principle his absence during the entire trial could be justified.” Mr. Works, in his “Courts and their Jurisdiction,” says, page 87: “ When the court is once opened, the presence of the judge is necessary at all times when judicial business is being — 531 — transacted. ’ ’ The following authorities clearly support all three of the propositions laid down in the Turbeville case, to wit: That in the trial of a felony the judge must always be where he can immediately respond to any call for the exercise of his authority in controlling his court and the conduct Of the trial, his relinquishment, though even temporary, of such control of the court and conduct of the trial working, as to that case, a dissolution of the court; that the judge cannot delegate his judicial authority to another; and that his doing so, even with the consent of the parties, cannot bind the defendant. The cases cited in the note to Roy v. Hursley, 25 Am. Rep., 540, 541; 12 Am. & Eng. Enc. L., 11, note 5, with authorities; Shaw v. People, 3 Hun (Sup. Ct. Rep., N. Y.), opinion by Hardin, J., 279, s. c. 63 N. Y. (Ct. App.), 38, 39; Peoples. White, 24 Wendell, 528, bottom of page 545, opinion of Walworth, chancellor; also opinions of other judges, pp. 546, 549, 555, 556, and 563; Blend v. People, 41 N. Y., 606; Hoagland v. Creed, 81 Ill., 506; VanSlyke v. Fire Ins. Co., 39 Wis., 390. Section 165 of the constitution has no application to the case made by the record. If this error were a merely technical one, not vital in its nature, we would not for that alone reverse the judgment. But the error here is of the gravest character — it goes to the very organization and constitution of the court trying the appellant on a charge of murder. So far as the lawful power of this court can be exerted in affirming convictions for violations of the law of the land, it shall be exerted; and mere technical errors, without intrinsic merit, when we can, after a careful and thorough examination of the whole case, confidently say that the right result has been reached, that substantial justice has been done, and that, on a new trial, no other result could reasonably be arrived at, will not avail here for reversal in civil or criminal cases; but where the defendant has been, as here, denied a right secured to him by the constitution and the laws of the land, in a matter going to the very constitution of — 532 — the court trying him, we are compelled to reverse the case. In such cases the interests of society, the stability of the laws, the due administration of justice, demand a reversal. Disregard of fundamental right in the case of the guiltiest defendant, his conviction in violation of settled constitutional and legal safeguards intended for the protection of all, are not things which affect the particular defendant in a given case alone, but, in their disastrous and far-reaching consequences, involve in future trials the innocent and guilty alike, subvert justice, and disorganize society. Guilt should be punished certainly and condignly, most assuredly, but guilt must be manifested in accordance with the law of the land, else some day the innocent, who are sometimes called to answer at the bar of their country, may come to find themselves involved in a common ruin and deprived of the legal trial necessary to the vindication of their innocence. Reversed and new trial awarded. Cause remanded.