Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-25
LEGAL.
decisions of the supreme Court OF
Tennessee, Rf Nashville, December
Term, 1867.

stance a portion Of bis original charge to the
jury, IN the absence Of the prisoner.
S0me-Ihe prisoner must be personally present
throughout his entire trial.
Lucius Witt, colored, rs. the State.
The prisoner, Lucius Witt, a man of
color, was indicted in the Criminal Court
Of Rutherford county for the murder of
Samuel Cunningham, also colOred. He
was subsequently tried, convicted, and
sentenced 10 be executed, from which he
has appealed TO this court.
After the court charged the jury and re-
manded the prisoner 10 Jail, they retired
10 consider Of their verdict and after re-
naming out for several hours, they re-
turned in a body into court and upon being
asked if they had agreed in their verdict,
they replied ''they had not" They we're
then inquired ifthere was any disagreement
among themselves as TO the charge Of the
court, towhichthey responded there was. The
courtinstructed them TO retire and ascertain
the matter Of disagreement, and then again
return and report il 10 the court. They did
so, and, upon their return reported, their
misunderstanding related TO that portion
of the charge in which the distinction was
drawn between murder in the first and
III hiaE hGiOuh hNkAGNs hNibhHOh
the court proceeded in the absence Of the
prisoner, but in open court, and in the
presence Of his counsel, to re-state in sub
stance that portion Of his original charge
in relation TO the distinction between muir
der in the first and second degree. The
jury again returned, and soon thereafter re-
turned with a verdict of guilty, and upon
which the court after overriding a motion
for a new trial, pronounced sentence of
death upon the prisoner.
Under this state Of the record, the single
question is presented whether or not it was
error for the court 10 Te-state Gin substance"
ABORTION Of his original charge TO the jury
in the absence OF the prisoner
By the vigorous rule Of the ancient COM
mon law, which has been greatly relaxed
by the advance of civilization and Chris
tian philanthropy, the prisoner even in
capital cases. when tried upon the general
issue, was bound to make his own defense.
No counsel was allowed him unless some
point Of law arose proper TO be debated,
4 Black, com. 255. This same iron rule
rested on the maxim that "the Judge is
counsel for the prisoner" which seems TO
signify nothing more than that the Judge
shall take care that the prisoner does not
suffer for the want Of counsel. The Judge
is counsel only for public justice, and to
promote that object alone. All his in
quiries and attention ought TO be directed,
but this rule as far back as the days of
Cicero and Panastius, was felt to be ex-
oeedingly harsh aEd unsound, resting
neither in reason or principles of COM
mon humanity. Both of these great
lights even in their day took the well
drawn distinction between the duty of a
Judge and of counsel The former was
bound simply 10 pursue the truth of the
cause, and while the latter, ont of human
ity, was permitted TO urge what was only
its semblance Cicero de Of. lib 20, IA.
But without stopping TO criticise the
right Of an advocate TO urge, under any
circumstances, the mere semblance Of truth,
il is enough TO say, that our bill OF rights,
article l, section 9, Constitution of Tennes-
see, has given TO the accused the right to
be heard, both by himself and his counsel.
The broad language of the section ia
" That in all criminal prosecutions the &C
cused hath right to be heard by himself
and his counsel. TO demand the nature and
the cause Of the accusation against him,
and TO have q copy thereof; TO meet the
witnesses face 10 face 10 have compulsory
process for obtaining witnesses in his ia
vor; and in prosecutions by Indictment or
presentment, speedy public trial, by an
impartial jury Of the country or district in
which the crime shall have been com
mitted and shall not be compelled TO
give evidence against himself"
Following the principles of this humane
=. r. Al. -
which, in some degree, is in conformity
TO the more modern principles of the com
mon law, this court, in thecase Of Andrews
as the State, Sneed, $50, said "In GRIM
inal cases of the grade of felony, where
the life or liberty of the accused is in peril,
he has the right 10 be present, and must be
present during the trial, and until the fR0l |
judgment IL he be absent, either in prison |
or by escape, there is a want of jurisdiction |
over the person 90 proceed with the trial, |
or TO receive the verdict or TO pronounce |
the final Judgment Clark rs the State, 4 |
Hum. 254, Hawk. =. c. 6l9, c. q Lit 227, |
Raymond 1913, Hale 800. Blacks Com,
360 Bacon's AL, verdict, b, l Chitty's |
Grim. Law, 636, 60 which may be added /
Wharton's Am. Grim law, 9l9; l Chitty's /
Grim. Law, 4l3; Jacobs u.s. Cone, Serg. |
q r., 1876; ? Hale, PIG, and the State rs.
France, / Tenn. r, 436.
But the argument is, that in the case
now under consideration, the counsel Of
the prisoner was present when the court
resiated the substance Of his instruction TO /
the Jury, and that answered both the re-
quirements Of the bill Of rights and the
authorities relied on by the opposing coun-
AL NJ Of a. "A = =
tion. The presence Of the counsel of the
accused alone does not meet either the let
ter or the spirit Of the bill Of rights, or
the authorities above quoted. The prison
er has a right % be heard, both "by him
self and his counsel" and that too, du-
ring the entire trial Ii is not enough that
he meets the witnesses face TO face" and
is permitted to be present at the argument
Of his cause. The right is guaranteed 10
him 10 conduct his own defense, or to aid
his chosen counsel in doing so, and 10 he
present as well when the charge Of the
court is delivered TO the jury, as when their
verdict IA returned into open court
when the trial is once begun, il il not
strictly ended until the verdict Of the Jury /
is delivered, and received by the court and
final Judgment pronounced thereon.
1t is true the prisoner need not remain
in court during the retirement of the jury
60 consult as 20 their verdict, bat if they
Voluntarily return TO deliver their verdict,
the court has no power to receive it in the
absence Of the prisoner; and IL il be re
ceived for want Of jurisdiction, it is a null
lity. Andrews Is. the State, . Sneed $50;
30. also, Il is the prisoners right IL after
the original charge has beer delivered and
the jury has retired 10 consider Of their
verdict, the court recalls them, TO correct
any mistake made in his charge, or 10 alter
or modify il in any respect 10 be present
and witness whatever is done court touch
inc his trial; and with equal rea-
,o5 and authority, he has the RICH