State v. Freeze, 170 N.C. 710 (1915)

Nov. 17, 1915 · Supreme Court of North Carolina
170 N.C. 710


(Filed 17 November, 1915.)

1. Constitutional Law — Criminal Law — -Verdict — Prisoner’s Presence — Waiver.

Where, on appeal from a conviction of larceny, error is assigned to the imposition of the sentence of the court, that neither the defendant nor his attorney was present at the rendering of the verdict, and had not been afforded opportunity to poll the jurors, as they were discharged, etc., it is Held, that to sustain the exception it is necessary that it be made to appear whether the absence of the appellant or his attorney was voluntary, for in felonies less than capital, and in misdemeanors, the right to be present may be waived by the conduct or acts of the accused.

2. Appeal and Error — Unsupported Assignment — Record.

A statement in the assignments of error, when there is nothing in the statement or record of the case on appeal to give it any support, is only the unsupported statement of the appellant of what had occurred, and hence the assignment of error depending thereon will not be considered on appeal.

Appeal by defendant from Lyon, J., at April Term, 1915, of GfrriL-eoed.

Indictment for stealing a stack of bay. There was a verdict of guilty; judgment on the verdict, and defendant appealed on the alleged ground that he was not present at the time the verdict against him was rendered.

The case on appeal, agreed upon by counsel, after stating the indictment, plea, impaneling of the jury, evidence, verdict, and judgment and appeal, without exception or other statement appearing'in the record, contains the following: “Defendant duly excepted to the verdict of the jury on the ground that neither he nor his attorney was present at the rendering of the verdict against him by the jury, and the defendant assigns as error that the verdict of the jury was rendered against him in the absence of both himself and his attorney, and that he had no opportunity whatever to poll the jury, as they were discharged before he or his attorney was informed of the verdict.”

Attorney-General Biclcett and Assistant Attorney-General Calvert for the State.

N. L. Eure for defendant.

Hoee, J.

In S. v. Cherry, 154 N. C., pp. 624-626, in speaking of the right of a defendant to be present at different stages of the trial in capital and lesser felonies, this Court said: “It is the law of this State, a principle having prominent place in our Declaration of Rights, that in every criminal prosecution the defendant has the right to be informed of the accusation against him and to confront his accusers and their *711witnesses. Applying tbe principle, this Court bas beld in several cases that in capital trials tbis right to be present in tbe court below cannot be waived, but that tbe presence of tbe prisoner is essential at all stages of tbe trial. In felonies less tban capital, and in misdemeanors, tbe same right to be present exists, but may be voluntarily waived by tbe accused, a limitation being that- in tbe case of felonies certainly tbis Avaiver may not be made by counsel unless expressly authorized ‘thereto. S. v. Jenkins, 84 N. C., 812. Tbe decisions are also to tbe effect that when' the accused voluntarily absents himself, and more especially when be bas fled tbe court, such conduct may be considered and construed as a waiver, and in that event tbe presence of tbe accused is not regarded as essential to a valid trial and conviction,” citing S. v. Pierce, 123 N. C., 745; S. v. Kelly, 97 N. C., 404 ; S. v. Paylor, 89 N. C., 540; Clark’s Criminal Procedure, p. 423.

It does not appear from tbe record tbat tbe absence of tbe defendant, at tbe time tbe verdict was rendered against him was not voluntary on his part, and so amounting to a waiver of his right to be present within tbe principle of tbe above decision, save and except in bis assignment of error. Tbis being on defendant’s own assertion, it bas been held in numerous tbat tbe averments of suck an assignment may not be considered in impeacbpient of tbe trial. McLeod v. Gooch, 162 N. C., 122; Worley v. Logging Co., 157 N. C., pp. 490-499; Patterson v. Mills, 121 N. C., pp. 258-268; Merrill v. Whitmire, 110 N. C., pp. 367-370; Lowe v. Elliott, 107 N. C., pp. 718-719; Walker v. Scott, 106 N. C., pp. 56-61; 3 Ed. Clark’s Code, sec. 550.

In most of these decisions tbe Court was passing on tbe consideration to be given to an assignment of error where tbe averments were not founded on a valid exception properly taken, but a perusal of these earlier cases will show tbat ordinarily tbe position also applies as to tbe facts stated in an exception taken by the appellant, when there is nothing in tbe record or statement of case on appeal to give them any support. Tbis being true, there is nothing in tbe present record, apart from defendant’s own statement in bis exception, to show tbat tbe verdict was in fact rendered in defendant’s absence.

Defendant bas been convicted after a fair and impartial trial. Tbe evidence fully supports tbe verdict, and no rea.son is shown why tbe judgr ment imposed by tbe court should hot be carried out.

No error.