Summary
In Jones v. State, 204 Miss. 284, 285, 37 So.2d 311, 311 (1948), we stated that "[i]n a trial for a misdemeanor, the accused may, by his own fault or misconduct, waive his right to be present."
Summary of this case from Stidham v. StateOpinion
November 8, 1948.
1. Criminal procedure — trial, right of accused to be present.
The accused has the constitutional right to be present when tried on a criminal charge, whether of a misdemeanor or a felony, a right which the accused may waive in a misdemeanor trial by his own fault or misconduct. But, where the absence of the accused is due to his physical inability to attend, and this is adequately shown, it cannot be said that he voluntarily absents himself, and if tried in his absence he is deprived of his constitutional right to be present, and the conviction will be set aside and vacated. Section 26, Const. 1890.
Headnote as approved by Montgomery, J.
APPEAL from the circuit court of Simpson County; HOMER CURRIE, J.
O.D. Brame, for appellant.
The trial court erred in overruling motion for continuance, based on the evidence to the effect that the appellant was too ill and not physically able to stand trial and to be forced to do so would be detrimental to his health, and in support of our contention we cite the cases of Corbin v. State, 99 Miss. 486, 55 So. 43; Hoggett v. State, 99 Miss. 844, 56 So. 172; and Sullivan v. State, 116 So. 612. In the Corbin and Hoggett cases as above cited the court held, "Where one is too ill to be present at their trial for a misdemeanor, the court must grant their application for a continuance, and a conviction rendered on a trial in their absence will be reversed." In the Sullivan case, as above cited, holds "In liquor prosecution, overruling application for continuance on ground that accused was sick and unable to attend court on day of trial held error, where record did not disclose any competent testimony in conflict with testimony of two physicians that in their judgment accused was unable to attend court on that day."
R.O. Arrington, Assistant Attorney General, for appellee.
The record shows that the appellant made no attempt to comply with the statute on continuances as no sworn application was filed as provided in section 1520, Volume 2, Code of 1942. The court, in Gibson v. Carr, 91 Miss. 773, 45 So. 864, held: "2. Continuance. Application. Denial. Code 1906, Section 784. Supreme Court practice. The denial of a continuance by the trial court will not warrant a reversal of its judgment by the supreme court, where the application failed to conform to the requirements of Code 1906, section 784, regulating the subject and providing what must be stated in such applications." See also Hinton v. State, 175 Miss. 308, 166 So. 762.
The appellant was indicted by the grand jury of Simpson County on a charge of wilfully, unlawfully and intentionally pointing a pistol at and toward Dewit Mangum, a human being, not in his necessary self-defense nor in the lawful discharge of his official duty. Jones plead not guilty and moved for a continuance on the ground that he was sick and physically unable to stand trial at the term. In support of his said motion, he offered the testimony of his wife, Dr. D.T. Love, and himself, establishing beyond question that his physical condition rendered it impossible for him to go to trial. The court overruled the motion for continuance and set the trial for the following Monday, when the appellant was tried in his involuntary absence and convicted. This was error.
(Hn 1) The appellant had the constitutional right to be present when tried, to be heard in his own behalf, and to be confronted by the witnesses against him. Such right was guaranteed to him by Section 26 of the Constitution, which applies to trials for misdemeanors as well as felonies. In a trial for a misdemeanor, the accused may, by his own fault or misconduct, waive his right to be present. Williams v. State, 103 Miss. 147, 60 So. 73. But, where the absence of the accused is due to his physical inability to attend his trial, it cannot be said that he voluntarily absents himself; and, if tried in his absence, he is thereby deprived of his constitutional right to be present. Corbin v. State, 99 Miss. 486, 55 So. 43; Haggett v. State, 99 Miss. 844, 56 So. 172; Sullivan v. State, 150 Miss. 204, 116 So. 612.
Reversed and remanded.