WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JULIUS MINER, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Ira Nelson and Willie Powers were found guilty of armed robbery by a jury in the criminal court of Cook County. Nelson's motion for a new trial was denied and he was sentenced to the penitentiary for a term of not less than 20 nor more than 35 years.
Nelson prosecuted a writ of error to review the judgment of the trial court and here contends that certain errors entitle him to a new trial, but that the returning of the verdict while he was involuntarily absent from court was of such serious nature as to require that the judgment be reversed without remanding, or, in the alternative, that the judgment be reversed and the cause remanded with directions to order his discharge from further prosecution.
The record shows that after the court instructed the jury and submitted the case to it, the bailiffs were instructed to return the defendants to the "lock up;" and that the verdict of guilt was received in open court later the same day. However, there is nothing to affirmatively show that defendants were present at that time. After the verdict had been received and the jury discharged, the cause was adjourned to the following day at which time judgment and sentence were pronounced. The record indicates that defendants and their counsel were then present in court and that they were also present when the motion for new trial was made.
Nelson, hereafter referred to as defendant, contends that since the record fails to show, either affirmatively or by necessary implication, that he was present in court at the time the verdict was returned, the verdict was a nullity; and that his discharge from further prosecution under the constitutional safeguard against double jeopardy was thereby necessitated. Counsel for the People concede that it was error to receive the verdict in the absence of the defendant, but urge that the error is only ground for a new trial.
We have always recognized the right of a defendant in a felony case to be present at all stages of his trial, including the rendition and recording of the verdict of the jury. (People v. Pierce, 369 Ill. 172; People v. Krakowski, 308 Ill. 266; Sewell v. People, 189 Ill. 174; Padfield v. People, 146 Ill. 660; Holliday v. People, 4 Gilm. 111.) This view is in accord with the prevailing rule in other jurisdictions. Ann. 23 A.L.R.2d 456, 463.
There is no suggestion here that defendant by words or conduct waived his right to be present when the jury returned its verdict. Nor is there anything in the record from which we might reasonably indulge in the presumption that his presence, once shown, had continued throughout the trial. The record, in fact, rebuts such presumption in that it affirmatively shows that defendant was returned to the jail after the jury had retired to deliberate and that he was not present in court thereafter until judgment was pronounced on the verdict. These facts are admitted and pose the question, heretofore undetermined by this court, of whether defendant should be discharged or his case reversed and the cause remanded for new trial.
The case nearest in point is People v. Smith, 6 Ill.2d 414. There the defendant was tried before the court without a jury and, although present at the earlier stages of his trial, he was not in court when judgment and sentence were pronounced against him and his post-trial motions were overruled. Upon review, we held that he had the right to be present at every stage of his trial, that it was reversible error to proceed with sentence and judgment in his absence unless the record showed "that his absence was voluntary or that he had waived his right to be present," and we remanded the cause for a new trial.
In Smith, the defendant did not contend that he was entitled to discharge or that a new trial would place him twice in jeopardy for the same offense. He asked for a new trial, and we held that he was entitled to that relief. While that decision is not dispositive of the question presented here, certain points of similarity should be noted. In each case, the accused was involuntarily absent from court when the finding of guilt was pronounced against him and by post-trial relief sought a new trial. Neither Smith nor the defendant in the case at bar sought to vacate the judgment on the ground that it was a nullity, and neither asserted the right to discharge in the trial court. The cases differ in that in Smith the trial judge decided the issues of fact leading to the ultimate pronouncement of guilt while in the case at bar the jury exercised that function.
The defendant Nelson, notwithstanding his request for a new trial in the criminal court, now urges this court to find that the verdict rendered against him in his absence was a nullity and that he should be discharged. He contends that the discharge of the jury before the return of a valid verdict determining his guilt or innocence placed him in jeopardy thereby necessitating his release from further prosecution.
Although there are some decisions to the contrary, the prevailing rule in other jurisdictions is that the receipt of a verdict in the involuntary absence of the accused, although improper, is ground only for a new trial and does not warrant discharge from further prosecution; and that such error cannot be reached by motion to set aside or vacate the verdict as a nullity. 14 Am. Jur., par. 198, pp. 904-905; 23 C.J.S., sec. 1450(e), p. 1214.
Thus, in State v. Knutson, 175 Minn. 573, 222 N.W. 277, defendant challenged the validity of a verdict, rendered in his absence, by a motion in the trial court that the verdict be set aside, and appealed from the order denying his motion. The Supreme Court, after noting that the error would have been ground for a new trial, at page 278 stated: "Should the misstep or irregularity in receiving the verdict in defendant's absence forever free and absolve him from all punishment for the crime he has committed? This would have been the result had his motion to set aside the verdict prevailed, or if the judgment is now reversed; for he could then successfully plead, as he intimates, former jeopardy, should the state thereafter attempt to hold him accountable for the crime. The consequence of a reversal of this judgment would be a miscarriage of justice."
In Commonwealth v. Gabor, 209 Pa. 201, 58 A. 278, the defendant was indicted for murder and the jury returned a verdict finding him guilty of manslaughter. This verdict was received in the absence of the defendant who moved for a discharge in the trial court. The motion was denied but a new trial was ordered. On appeal the judgment was affirmed and the Supreme Court of Pennsylvania held that the order granting a new trial did not violate the constitutional provision that no person shall be twice put in jeopardy for the same offense. At page 280 (Atl.), in quoting from its former opinion in Commonwealth v. Fitzpatrick, 121 Pa. 109, 117, 15 A. 466, the court stated: "The justice of sustaining a plea of former acquittal or conviction is unquestioned and unquestionable, but a plea of `once in jeopardy' stands on narrower, more technical and less substantial ground. It alleges only that there might have been a conviction or an acquittal, if the judge trying the case had not made a mistake in law which prevented a verdict. It is of no consequence how many mistakes he makes, if the trial results in a conviction. The mistake can be corrected on writ of error and the defendant tried over again."
In a later case that court had occasion to review a judgment denying a writ of habeas corpus sought by relator after a jury had returned a verdict in a felony trial in his involuntary absence. It held that the writ should have been awarded but only for the purpose of allowing the defendant a ...