ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.
MR. JUSTICE SHIRAS delivered the opinion of the court.
This was a writ of error sued out to review a judgment of the Circuit Court of the United States for the Western District of Arkansas, imposing a sentence of death upon Alexander Lewis, plaintiff in error, for the murder of one Benjamin C. Tarver, at the Cherokee Nation, in the Indian country.
It appears by the record that on the trial of the case, and after the accused had pleaded not guilty to the indictment, the court directed two lists of thirty-seven qualified jurymen to be made out by the clerk, one to be given to the district attorney and one to the counsel for the defendant, and that the court further directed each side to proceed with its challenges, independent of the other, and without knowledge on the part of either as to what challenges had been made by the other.
It further appears by the record that to this method of proceeding in that regard, the defendant at the time excepted, but was required to proceed to make his challenges; that he challenged twenty persons from the list of thirty-seven persons from which he made his challenges, but in doing so he challenged three jurors who were also challenged by the attorney for the government.
It further appears that the government, by its district attorney, challenged from the list of thirty-seven persons five persons, three of whom were the same persons challenged by the defendant, and that this fact was made to appear from the lists of jurors used by the government in making its challenges and the defendant in making his challenges.
To the happening of the fact that both parties challenged the same three jurors, the defendant at the time objected, but the court overruled the objection, and directed the jury to be called from the said two lists, impaneled and sworn, to which the defendant at the time excepted.
The assignments of error ask us to consider the validity of the method of exercising his rights of challenge, imposed upon the defendant by the order of the court, and also the propriety of the instruction given by the court to the jury, on the subject of the defence of an alibi, by giving prominence to the cautionary rules by which they should weigh this class of testimony, and particularly in saying to the jury that it was a defence often resorted to, and often attempted to be sustained and made effective by fraud, subornation and perjury.
A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has, at times and in the cases of misdemeanors, been somewhat relaxed, yet in felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. "It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence." Prine v. The Commonwealth, 18 Penn. St. 103, 104, per Gibson, C.J. And it appears to be well settled that, where the personal presence is necessary in point of law, the record must show the fact. Thus, in a Virginia case, Hooker v. The Commonwealth, 13 Grat. 763, 766, the court observed that the record showed that, on two occasions during the trial, the prisoner appeared by attorney, and that there was nothing to show that he was personally present in court on either day,
and added, "This is probably the result of mere inadvertence in making up the record, yet this court must look only to the record as it is. . . . It is the right of any one, when prosecuted on a capital or criminal charge, 'to be confronted with the accusers and witnesses,' and it is within the scope of this right that he be present, not only when the jury are hearing his case, but at any subsequent stage when anything may be done in the prosecution by which he is to be affected." Thereupon the judgment was reversed. And in the case of Dunn v. Commonwealth, 6 Penn. St. 384, it was held that the record in a capital case must show affirmatively the prisoner's presence in court, and that it was not allowable to indulge the presumption that everything was rightly done until the contrary appears. Ball v. United States, 140 U.S. 118 is to the same effect.
In Hopt v. Utah, 110 U.S. 574, 578, 579, it is said: "The argument in behalf of the government is that the trial of the indictment began after and not before the jury was sworn; consequently, that the defendant's personal presence was not required at an earlier stage of the proceedings. Some warrant, it is supposed by counsel, is found for this position, in decisions construing particular statutes in which the word 'trial' is used. Without stopping to distinguish those cases from the one before us, or to examine the grounds upon which they are placed, it is sufficient to say that the purpose of the foregoing provisions of the Utah Criminal Code is, in prosecutions for felonies, to prevent any steps being taken, in the absence of the accused and after the case is called for trial, which involve his substantial rights. The requirement is, not that he must be personally present at the trial by the jury, but 'at the trial.' The code, we have seen, prescribes grounds for challenge by either party of jurors proposed. And provision is expressly made for the 'trial' of such challenges, some by the court, others by triers. The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the and which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defence may
not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of empaneling the jury begins." And further: "We are of opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority." 1 Bl. Com. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods." So, too, in the case of Schwab v. Berggren, 143 U.S. 442, 448, this language of the court in Hopt v. Utah is cited and approved.
Inthe case of Dyson v. Mississippi, 26 Mississippi, 362, 383, it was said: "It is undoubtedly true that the record must affirmatively show those indispensable facts without which the judgment would be void -- such as the organization of the court; its jurisdiction of the subject-matter and of the parties; that a cause was made up for trial; that it was submitted to a jury sworn to try it (if it be a case proper for a jury); that a verdict was rendered, and judgment awarded. Out of abundant tenderness for the right secured to the accused by our Constitution, to be confronted by the witnesses against him, and to be heard by himself or counsel, our court has
gone a step further, and held that it must be shown by the record that the accused was present in court pending the trial. This is upon the ground of the peculiar sacredness of this high constitutional right. It is also true, as has been held by this court, 'that nothing can be presumed for or against a record, except what appears substantially upon its face.'" Continuing, the court said: "This rule has reference to those indispensable requisites necessary to the validity of the record as a judicial proceeding."
As already said, the record shows that at the trial of the case the court directed two lists of thirty-seven qualified jurymen to be made out by the clerk, and one to be given to the district attorney and one to the counsel for the defendant; and the court further directed each side to proceed with its challenges, and without knowledge on the part of either as to what challenges had been made by the other. Although the record states that after the challenges the twelve jurors who remained were sworn, yet it clearly appears from the whole record, and the lists therein referred to, that after the challenges there remained, not only twelve, but fifteen jurors, and that by the mode adopted, which required the prisoner to challenge by list, he exhausted some of his challenges by challenging jurors at the foot of the list, and who were never reached to be sworn as jurors in the case. And the record does not disclose that, at the time the challenges were made, the jury had been called into the box, nor that they or the prisoner were present at the time the challenges were made. It does, indeed, appear that the clerk called the entire panel of the petit jury, but it does not appear that, when the jury answered to said call, they were present so that they could be inspected by the prisoner; and it is evident that the process of challenging did not begin until after said call had been made. We ...