Lee v. State

On Rehearing. The learned Assistant Attorney General, with commendable candor, asserts in his brief supporting the application for rehearing: "In making this application for rehearing in this cause there is nothing I can do but be frank with this Court. Judge SIMPSON, in writing the opinion of the Court which is an able one, states without question in my mind the law as it now exists in Alabama, but we think the rule as heretofore adhered to by our courts has been of too strict a construction. * * * We want it understood that we are not here contending that the opinion of the Appellate Court in this case is error but what we are insisting on is for this court to modify the rule."

Could we change the rule (Code 1940, Title 13, Sec. 95), we would not do so. The rule of logic which forbids the absence of a defendant at each important step of a serious criminal trial is inescapable.

If such a case is of sufficient importance to be instituted, then the gravity thereof should attend it until its conclusion. Conduct of no important phase of it should be left to the whim of the jury and a court bailiff, all the principals therein, including the judge and the defendant, having meanwhile absented themselves and court having adjourned. This is tantamount to locking up the courthouse and leaving the conduct of the trial in the hands of the jury and the bailiff. This should not be.

While commending the able Attorney General for his earnest attention to duty in seeking to sustain such action at nisi prius, we are fully persuaded that our conclusions hereinabove find solid support in reason and authority, and that the application must be overruled.

Opinion extended and rehearing denied.