Cleary v. State

Ubjn'er, J., delivered the opinion of the Court. In the case of Duffy v. State, 151 Md. 456 , it was decided that, because the trial court instructed the jury as to the form of their verdict during the involuntary absence of the appellant from the court room, his motion to strike out the judgment on that ground should have been granted. The action thus held to have been erroneous occurred in the course of Duffy’s trial, jointly with Oleary, the present appellant, on indictments charging them with robbery. Roth were convicted and were separately sentenced to- different terms of imprisonment.

Each of them filed a motion for a new trial, which was overruled. Duffy then moved that the judgment against him be stricken out for the reason wo have stated. ISTo such motion was made by Oleary, although he also was absent from the court room, in the custody of officers, at the close of the trial, when the jury returned for a repetition of the instructions given by the court as to the form of the verdict. The judgment against Oleary was entered on January 29th, and that against Duffy on February 8th, 1926.

The motion of the latter to strike out the judgment against him was then immediately filed, and from the adverse ruling on his motion he appealed. The case was heard in this court at the ensuing October Term. It was decided on November 12th, 1926, and the mandate in pursuance of the reversal and remand was received by the clerk of the trial court a month later. On August 10th, 1927, Oleary filed a motion to strike out the judgment against him on the same ground as that upon which Duffy had successfully relied.

The motion was overruled, and the present appeal has been taken because of that motion. It appears from a written stipulation, used at the hearing in the lower court on the pending! motion, that when the ⁶¹⁶ motions for a new trial filed by Duffy and Oleary were heard by the Supreme Blench of Baltimore City, it was stated by counsel for Cleary that the motion would not be pressed on his behalf because of the convincing evidence of his guilt. The stipulation also mentions the fact that one of the witnesses at the trial who identified Oleary as being one of the two persons who committed the robbery charged in the indictments had since died. The question to be determined is whether a defendant in a criminal case can obtain a new tidal upon such a ground as the one described, after acquiescing in his conviction for such a protracted period as we have indicated.

The contention that such a right exists in this case notwithstanding the delay is based upon the theory that the judgment was a nullity, and the opinion delivered on Duffy’s appeal is said to support that view. It was stated in the opinion that “the instruction of the jury as to the form of their verdict was a part of the trial, and in giving it during the involuntary absence of the prisoner, while he was in custody of the police, the court erred, and injury must be attributed to that error.” In discussing the question presented, the opinion said that “at common law, in all criminal prosecutions for felonies, * * *, there could be no valid trial or judgment unless the accused were present at every stage of the trial.” But the action of the trial court in repeating to the jury, during the prisoners’ temporary absence, the various forms of .verdict which had been mentioned to the jury in the prisoners’ presence, was treated in our decision as an error requiring a reversal of the judgment involved in that appeal, and not as a circumstance affecting the court’s jurisdiction and rendering the judgment wholly void. It was not