Brown v. State

Fish, C. J.

(After stating the foregoing facts.)

1. We will first consider the ground of the motion for new trial based on the absence of the sole counsel of the accused when the verdict was received. In the “ bill of rights ” of the constitution of this State it is declared: “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel.” Civil Code, § 6361. This constitutional right guarantees to one on trial for a crime alleged against him, and who enters thereupon with counsel employed by him present and defending him, to have such counsel present at every stage of the proceedings, so that he may personally see and know what is being done in the ease, and “ defendant does not lose this privilege, unless by a clear and distinct waiver thereof.” Martin v. State, 51 Ga. 567. To say that no injury results when it appears that what occurred in the absence of counsel was regular and legal, would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice. Hopson v. State, 116 Ga. 90 (42 S. E. 412). In Martin’s case, supra, there was a reversal because the court recharged the jury in a criminal case where counsel for defendant was absent from the court-room at the time, without leave of the court, but on account of a misunderstanding between counsel for the State and the defendant. It was said in the opinion: “It is said that under the rule we hold in this ease, courts might be embarrassed in the administration of justice, that cases could not be conducted with certainty to a conclusion if counsel for a prisoner could stop the trial by wilfully absenting himself from the courthouse. To this objection it may be replied that courts are armed with plenary authority to enforce the discharge of duty on the part of all their officers. And, besides a fitting and proper penalty on derelict counsel in the case supposed, they could, in cases when the necessity arose, require the defendant to procure other counsel, or make the appointment for him. If the absence of counsel resulted from a cause which would be a good ground for continuance, and it would not be proper to substitute other counsel, it were better that there should be a continuance, or at least a temporary postponement, than that one not skilled in the law, and who was largely ignorant of his legal rights and perhaps totally ignorant of the practice on which those rights rested, should lose a privilege, the value of which cannot be estimated, and which the organic law says shall not be taken from him. So, in this case, it would not probably have taken much time, possibly a few minutes, to have secured the attendance of defendant’s counsel, or, had that been impossible, other counsel might have been chosen by the defendant or appointed by the court. An effort in that direction would have been proper. As this important privilege was lost to the defendant in this case, and at a critical stage of the trial, through a mistake of the State’s counsel, at least it is positively so stated by defendant’s counsel, and doubtless the court was misled by it, we think that there should be a new trial.” The right of the accused to have his counsel present during the entire trial of his case has been recognized by this court in a number of other cases. Smith v. State, 60 Ga. 430; Lassiter v. State, 67 Ga. 739; Roberson v. State, 135 Ga. 654 (70 S. E. 175); Richards v. State, 136 Ga. 67 (70 S. E. 868); Baldwin v. State, 138 Ga. 349 (75 S. E. 324). But in these cases new trials were not granted, under the special facts involved. In O’Bannon v. State, 76 Ga. 29, it was broadly held: “ There was no error in receiving the verdict in the absence of the prisoner’s counsel, the prisoner being present.” The ruling there made is not in accord with the prior decisions of this court, and has never been cited or approved, so far as we are aware. And moreover, in view of the note of the trial judge to the ground of the motion for new trial in O’Bannon’s case, which was overruled, such judgment might have been affirmed for the same reasons given in later decisions.

After much thought and deliberation as to this ground of the motion for new trial, we have-concluded, in view of all the circumstances, that a new trial should have been granted. The ground of the motion states that neither the defendant nor his counsel heard the judge make any statement to the sheriff that, in the event the jury should arrive at a verdict, upon being notified of that fact the judge would return to the court-room and receive it. The ground of the motion was unqualifiedly approved by the judge, and on the hearing of the inotion the affidavits of the defendant and his counsel as to the truth in this respect of the ground were submitted. The State introduced no evidence to the contrary; nor did the judge, in so far as appears from the record, then make any statement in relation to the matter, but subsequently, after considering the motion and when he overruled it, stated that he announced to the sheriff from the bench that if the jury made a verdict he would return to the court-room and receive it, and that this was said in a tone sufficient for all to hear who were in attendance upon the court, interested and paying attention; and, moreover, that it was the universal practice and custom of the court to receive verdicts in homicide cases as soon as notified that they had been made, and that this was known to counsel of the defendant. Even if this could be considered a clear and distinct waiver on the part of the defendant, who, though present, was not asked by the court if he would waive the absence of his counsel and the polling of the jury when the verdict was received, or if he would consent to the appointment of counsel for him, we think the judge should have made the statement in reference to the matter at the hearing of the motion, in order that the defendant and his counsel might have had the opportunity and benefit of answering it, if they could.

The only other special ground of the motion is that the court erred in failing to give in charge to the jury the provisions of the Penal Code (1910), § 73. This court has held in a number of instances that the provisions of this section apply only to cases of mutual combat. Jordan v. State, 117 Ga. 405 (43 S. E. 747), and cases cited; James v. State, 123 Ga. 548 (51 S. E. 577). A critical examination of tbe evidence in the record fails to show anything tending to make a case of mutual combat. Accordingly, the failure to give in charge the provisions of this section was not error.

Judgment reversed.

All the. Justices concur.