Appeal from Sixth Judicial District Court, Humboldt County; W. H. A. Pike, Judge, presiding.
P. A. McCarran and W. D. Jones, for Appellant.
Cleveland H. Baker, Attorney-General, for Respondent.
By the Court, Talbot, C. J.:
This is an appeal from a conviction of murder in the second degree, and from an order denying a motion for a new trial. The alleged errors relied on are that upon the trial some testimony was taken during the absence of the defendant, and that oral instructions were given and improper remarks made by the court to the jury.
1. Prior to and during the trial the defendant was in the custody of the sheriff, and in jail when the court was not in session. Upon the convening of court after a noon recess, and before the arrival of the sheriff with the defendant, whose absence for the moment was overlooked by the court and counsel for the state, the redirect
examination of the witness J. J. Williams was continued in the presence of the jury and defendant's counsel by Judge Bonnifield, attorney for the state. In this regard, the following appears in the record:
Mr. J. J. Williams, on redirect examination, resumed.
Mr. BonnifieldQ. You state that you watched Clark's progress up to the gate. A. That is right.
Q. Progress from Where? A. From where he was sitting beside the road.
Q. Watched him every instant? A. No, I can't say that I watched him every instant.
Q. Had your eye on him every step? Is that what you mean? A. No, sir.
Q. You spoke about a time there when Clark was the principal object of your vision. Remember that part of your testimony? A. I do.
Q. What was it, if anything, that made Clark the principal object of your vision? A. I was watching him when he raised his hand. Of course, my vision was concentrated there. That is what I mean.
The CourtWait a minute. I didn't notice but what the defendant was here. Just read the record since recess.
Mr. BonnifieldI didn't notice it myself.
The CourtI am sure I overlooked it. Read the record since____ Just cut the record out since recess. Strike it out. The jury will disregard everything that has been testified to since the noon hour.
Mr. JonesNow, if it please the court, I will ask the stenographer to read the questions and answers that may have taken place since Judge Bonnifield commenced to examine the witness.
The CourtWhat do you want read now?
Mr. JonesJ. J. Williams, at the convening of court at the noon recess, and during all of which time defendant, Clark, was absent from the courtroom.
The CourtWell, I have ordered that record stricken out.
Mr. JonesI desire to have it read now.
The CourtRead it. (The reporter read the same.)
Mr. JonesI now ask that the record show that at the end of the last answer read by the reporter that Clark appeared in the courtroom for the first time since the court adjourned at 12 o'clock this day, and that the questions and answers propounded to the witness J. J. Williams by counsel for the state were all propounded and the questions given in the absence of the defendant. Now, if it please the court, the defendant moves the court that the jury in this case be discharged, and that no further proceedings in this case be had, for the reason that testimony has been taken in the absence of the defendant from the courtroom, but within the hearing of the court, and for a portion of the time when he was in the jail of the county in a building not within the courtroom. (Counsel for defendant objects to any further testimony being taken in the case at all, for the reasons just state.)
Mr. BonnifieldIf the court please, while counsel is so anxious to have the record show certain things, we will ask that the record show something else, too, and that is, that at the convening of the court after the noon recess, after we were all in here, and when the defendant's attorneys were both present in court, and after the court had said, Proceed with the case, those questions were asked, and answers given, and that neither of the attorney for the defendant made the slightest suggestion that the defendant was not present in court, or said a word, and that as soon as your honor discovered the defendant was not present you immediately stopped the examination, and ordered that all those proceedings be stricken out. We ask that also be made a part of the record.
The CourtThe record will show remarks of counsel and the remarks of the court, and the motion will be denied, and the jury is at this time admonished to disregard any testimony that has been offered since the noon hour up to the present time, and I would like to ask the sheriff, What is the reason, Mr. Sheriff? How was it?
The SheriffI was busy with some other things, and I kind of overlooked ...