See OPEN COURT.
In Patterson v. Colorado, 205 U. S. 454, 27 Sup. Ct. 556, 558, 51 L. Ed. 879, 10 Ann. Cas. 689, it was said by Mr. Justice Holmes : "The theory of our system is that the con clusions to be reached in a case will be in duced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. What is true with reference to a jury is true also with reference to a court." Presence of Accused. The rule that in a criminal trial, certainly in case of felony, the accused must le present during the entire proceedings, was a fundamental principle of the common law, repeated in constitutional or statutory provisions, probably in nearly every state, and while the necessity for its strict enforcement may be Tess urgent than iu former times, It is still ,,stringently • en forced ; French v. State, 85 Wis. 400, 55 N. W. 566, 21 L. R. A. 402, 39 Am. St. Rep. 855 ; Maurer v. People, 43 N. Y. 1.
A person indicted for a misdemeanor is entitled to be present throughout the trial and particularly to plead. at the arraignment ; Rose v. State, 20 Ohio 31; but if absent be cause he cannot be brought into court on account of insanity, or his misbehavior inter feres with the trial, It may be conducted in his absence ; U. S. v. Davis, 6 Blatchf. 464, Fed. Cas. No. 14,923 ; Rex v. Mary Browne, 70 J. P. 472, where the defendant was twice re moved from the court for misbehavior, and informed that if it was persisted in she should be tried in her absence, and the proof showed that she was capable of behaving otherwise, a plea of not guilty was entered and she was tried and convicted. Where the defendant stands mute at his arraignment, the common law proceeding was to empanel the jury to determine whether he did so through malice or the act of God ; in the former case the judge might enter a plea of not guilty ; Reg. v. Israel, 2 Cox C. C. 263. See DEAF AND DUMB ; MUTE. On this author ity it has been contended that in the case of Rex v. Mary Browne, supra, the pro cedure was wrong and the jury should have been empaneled to determine her ability to plead ; 20 Harv. L. R. 235.
In cases of felony, it has been held as a general rule that the accused must be pres ent during the trial and when the verdict is rendered; 1 Bish. Cr. Pr. § 265 ; but that in cases not capital he might waive the right ; State v. Kelly, 97 N. C. 404, 2 S. E. 185, 2 Am. St. Rep. 299 ; contra, Prine v. Com., 18 Pa. 103 ; but where the prisoner was in dicted for murder and being out on bail left the court room when the jury went out, in his aLsence a verdict was returned of guilty of manslaughter and the receiving of a ver dict in his absence was held reversible•error ; Sherrod v. ,State, 93 Miss. 774, 47 So. 554,
20 L. R. A. (N. S.) 509; but in other cases of felony where the prisoner was out on bail, it was held not error to receive the verdict, it being his privilege to waive the right to be present ; Stoddard v. State, 132 Wis. 520, 112 N. W. 453, 13 Ann. Cas. 1211; State v. Way mire, 52 Or. 281, 97 Pac. 46, 132 Am. St. Rep. 699, 21 L. R. A. (N. S.) 56, and note collecting cases on the subject of waiver. Among the reasons given against the right to waive are that the prisoner should be within the jurisdiction of the court when the verdict is rendered ; Andrews v. State, 2 Sneed (Tenn.) 550; Sneed v. State, 5 Ark. 431, 41 Am. Dec. 102 ; Rex v. Ladsingham, T. Raym. 193.
There is quite general recognition of the right to waive being present during trials for misdemeanors; U. S. v. Mayo, 1 Curt. 433, Fed. Cas. No. 15,754; Warren v. State, 19 Ark. 214, 68 Am. Dec. 214; Sahlinger v. Peo ple, 102 Ill. 245; State v. Gorman, 113 Minn. 401, 129 N. W. 589, 32 L. R. A. (N. S.) 306 ; the rule being purely for the prisoner's bene fit, there is no reason why he should not waive it; Wilson v. State, 2 Ohio St. 319; but many judges resist the relaxation of common law rules as did Smith, C. J., in a dissenting opin ion in State v. Kelly, supra. The right of the accused to be present when a verdict Is re turned may be waived, and a verdict may be returned in his absence, if his absence is vol untary while he is at liberty on bond; State v. Way, 76 Kan. 928, 93 Pac. 159, 14 L. R. A. (N. S.) 603; Price v. State, 36 Miss. 531, Am. Dec. 195; Lynch v. Cora., 88 Pa. 189, 32 Am. Rep. 445. So the flight of the accused during the trial or after submission of the case to the jury is a waiver of the right to be present; U. S. v. Loughery, 13 Blatchf. 267, Fed. Cas. No. 15,631; State v. Kelly, supra; but it was held otherwise in Summeralls v. State, 37 Fla. 162, 20 South. 242, 53 Am. St. Rep. 247; Andrews v. State, 2 Sneed (Tenn.) 550. The waiver of the prisoner's right to be present cannot be made by counsel, either expressly; Cook v. State, 60 Ala. 39, 31 Am. Rep. State v. Jenkins, 84 N. C. 812, 37 Am. Rep. 643 ; or by failure to object; Rose v. State, 20 Ohio 32; Percer v. State, 118 Tenn. 765, 103 S. W. 780; but an express waiver by counsel was held sufficient in Caw thon v. State, 119 Ga. 395, 46 S. E. 897. And see notes to Gore v. Arkansas, 5 L. R. A. 834; Kansas v. Way, 14 L. R. A. (N. S.) 603.