The statement by counsel that he would waive the right of the defendant to be present during the argument of the solicitor-general, up to that time, was not in the presence of the defendant, was not authorized by him, and was made during his involuntary absence from the courtroom. The alleged waiver of the defendant's presence by his counsel was repudiated by the defendant at the first opportunity, upon information thereof to him received subsequently to the verdict. It was error to overrule the ground of the motion for new trial based upon the defendant's involuntary absence from the courtroom during that part of the argument of the solicitor-general set out in the ground.
Johnnie Wilson was charged with the murder of Luther Earl Bussey, and his trial resulted in a verdict of guilty without a recommendation of mercy. His motion for new trial, as amended, was denied, and the exception is to this judgment.
Counsel for the defendant has expressly abandoned the general grounds of the motion for new trial and his special grounds, with the exception of ground 4. This ground recites the following occurrence: After the evidence had been introduced and both sides had closed, the solicitor-general cited certain law to the court, and the counsel for the defendant cited certain law and made his argument to the jury. The court then recessed for the noon hour. After the noon recess, the court, the solicitor-general, the defendant's counsel, and the jury reassembled in the courtroom, and the court ordered the case to proceed. The defendant was then absent from the courtroom without the knowledge of the court or either counsel. The solicitor-general began his argument to the jury by announcing that the case which the defendant's counsel had contended was identical on its facts with the defendant's case (in regard to the mental responsibility of the defendant) was not in point on its facts, and then gave his reasons for contending that the cases were distinguishable on their facts. (The ground states the argument that the solicitor-general made.) The solicitor-general argued some five to ten minutes to the jury before it was called to the court's attention that the defendant was not present in the courtroom. The court then ordered the solicitor-general to discontinue his argument. Counsel for the defendant announced to the court that he waived the defendant's presence up to that point. After a few minutes, the defendant was brought into the courtroom, and the court ordered the trial to proceed.
The defendant asserts: The court did not instruct the jury to disregard the argument of the solicitor-general during the absence of the defendant. The defendant was not informed by the "court, his attorney, or anyone, that the solicitor-general had proceeded with his argument in the absence of the defendant, and he was not informed of what had transpired until after the verdict was rendered, sentence pronounced, and the jury discharged. At the time the waiver was made by counsel, the defendant was confined in jail, and his absence was involuntary. The defendant did not waive his right to be present during this period of his trial, and he did not authorize his counsel, either expressly or by implication, to make such a waiver for him. Such waiver was made without the knowledge or consent of the defendant. He has never ratified the unauthorized waiver of his presence, and has not allowed the court to act upon such waiver after receiving notice that it was made, the defendant not receiving notice of the waiver or that anything had transpired during his absence until five days after the verdict was rendered and sentence imposed. He has never acquiesced in the waiver made by his counsel, and now repudiates the act of his counsel in making such waiver. The court, in allowing the solicitor-general to proceed with his argument to the jury during the involuntary absence of the defendant, violated the constitutional rights afforded him under the Constitution of the State of Georgia, art. I, sec. I, par. IV (Code, Ann., 2-104).
The recitation of facts in the ground was supported by affidavits of the defendant and his counsel.
It is the legal right of a person accused of crime in this State to be present at all stages of his trial, such right being derived from our Constitution, art. I, sec. I, par. IV (Code, Ann., 2-104). This principle has been recognized since the establishment of this court. "The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence 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, 91 (42 S. E. 412); Wade v. State, 12 Ga. 25 (2).
This principle is not applicable where the accused is voluntarily absent on bail. Barton v. State, 67 Ga. 653 (44 Am. R. 743); Robson v. State, 83 Ga. 166 (9 S. E. 610); Hill v. State, 118 Ga. 21 (44 S. E. 820).
In cases in this court dealing with the involuntary absence of the accused during some stage of his trial, many statements have been made in regard to whether or not the right to be present has been waived. There seems to be little consistency in these statements, and many of them were made in cases where it was stated that no waiver had been made. There does seem to be sufficient consistency in the opinions to establish the point that a defendant in this State may personally waive his right to be present, or that his counsel may waive this right for him when the waiver is made in the defendant's presence. Smith v. State, 59 Ga. 513 (27 Am. R. 393); Cawthon v. State, 119 Ga. 395, 396 (8) (46 S. E. 897); Swain v. State, 162 Ga. 777 (135 S. E. 187).
We have found no case in this State ruling directly on the question of whether or not a new trial should be granted to the defendant in a case where a portion of the trial proceeded during his involuntary absence, and where counsel for the defendant waived the fact that the trial had thus illegally proceeded, which waiver was repudiated by the defendant when he learned of such illegal procedure and the waiver thereof by his counsel. In Frank v. State, 142 Ga. 741 (83 S. E. 645, L. R. A. 1915D 817), counsel for the defendant waived the presence of the defendant at the reception of the verdict, without the defendant's knowledge or consent, and the fact of his absence and the waiver of counsel was recited in his motion for new trial. After the denial of his motion for new trial was affirmed by this court, he made a motion to set aside the verdict, in which he alleged that the verdict was illegal because of his involuntary absence at the time of its reception. This court held that he would be considered as having acquiesced in the waiver of his counsel. No such acquiescence is shown in the present case.
In Bonner v. State, 67 Ga. 510, it was held that it was error for the judge to recharge the jury while the prisoner was absent and in confinement, although his counsel may have been present and kept silent. In Wilson v. State, 87 Ga. 583 (13 S. E. 566), it was held that it was the duty of the court to see that the defendant was present at all stages of the trial, and that it was error for the court to recharge the jury while the defendant was in an adjoining room in the custody of an officer, did not know that the jury was being recharged, and such knowledge did not come to him until after the recharge was concluded. In the Wilson case it was stated that the presence of his counsel "was no substitute for that of the man on trial."
In Tiller v. State, 96 Ga. 430 (23 S. E. 825), it was held that it was error to permit the solicitor-general to proceed with his argument to the jury while the accused was absent and confined in jail, no waiver having been made of his presence by himself or his counsel. In the body of the opinion it was stated: "We . . . are of the opinion that it was a duty devolving upon the judge himself to see to it that the accused was brought from jail to the courtroom, before allowing the argument to proceed; and the omission to perform this duty is of sufficient gravity to require the granting of a new trial. We do not mean to say that the duty of seeing that his client was present did not also rest upon the counsel; but his failure in this respect should not relieve the judge of giving the proper attention to this matter, he being primarily, and above all others, responsible for the regularity and lawfulness of the trial."
In Rider v. State, 195 Ga. 656 (6) (25 S. E. 2d 304), it was held that it was reversible error to charge the jury in the absence and without the knowledge or consent of the defendant, who had been taken to jail by an officer, although his counsel were present.
In Cawthon v. State, supra, it was held that, where an express waiver of the right of the defendant to be present at the reception of the verdict was made by counsel in the presence of the defendant, a verdict afterwards received in the absence of the defendant and in consequence of the waiver could not be held to be invalid at the instance of the defendant, seeking, after the reception of the verdict, to repudiate the action of his counsel in making the waiver. In the Cawthon case it was stated: "Before a verdict received in the absence of the accused will be held to be invalid, it is incumbent upon the accused to show that he was in custody of the law at the time the waiver was made, that he made no waiver of his right to be present, and that he did not authorize his counsel to make such waiver for him, and, if an unauthorized waiver has been made by counsel, that he has not ratified the same or allowed the court to act upon the waiver of counsel after he has notice that the same has been made." In the body of the opinion it was pointed out that "The open question in this State is whether his counsel can make the waiver for him." It was stated that the weight of authority in other jurisdictions seems to be that counsel can not waive the right of the accused to be present.
We have examined a number of cases from other jurisdictions, and concur in the view expressed in the Cawthon case, supra, that the weight of authority is that counsel can not waive the right of the accused to be present. See 14 Am. Jur. 907, 199; 23 C. J. 5.311, 975; State v. Myrick, 38 Kan. 238 (16 Pac. 330); Jones v. State, 26 Ohio St. 208, 210; State v. Wilcoxen, 200 Iowa 1250, 1252 (206 N. W. 260); Sherrod v. State, 93 Miss. 774 (47 So. 554, 20 L. R. A. (NS) 509); Prine v. Commonwealth, 18 Pa. 103; Green v. People, 3 Colo. 68; Smith v. People, 8 Colo. 457 (8 Pac. 920); Shipp v. State, 11 Tex. App. 46, 47; Osborn v. State, 24 Ark. 629; Waller v. State, 40 Ala. 325, 326 (5); Cook v. State, 60 Ala. 39 (31 Am. R. 31).
Under the former decisions in this court, we can not follow the decisions of courts of other jurisdictions to the extent of holding that a counsel can not, under any circumstances, waive the right of his client in a criminal trial to be present at all stages of the trial. However, this is an important right of the defendant, guaranteed by our Constitution, and we therefore hold that, in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.
In the present case, the waiver of counsel for the defendant was made without his knowledge or consent, as shown by affidavit of counsel attached to the ground of the motion for new trial, which was certified by the trial judge. The waiver was made after the trial had illegally proceeded in the defendant's absence. The defendant had no knowledge of the illegal procedure of the trial or the unauthorized waiver of counsel until after the verdict had been rendered, and he repudiated the waiver of counsel (who had been appointed by the court to represent him) at the first opportunity.
It was error to overrule this ground of the motion for new trial.
Judgment reversed. All the Justices concur.