
    Logan v. State.
    
      (Nashville.
    
    December Term, 1914.)
    CRIMINAL LAW. Trial. Presence of accused.
    Const. Declaration of Rights, art. 1, sec. 9, provides that in all criminal prosecutions accused hath the right to be heard by himself and counsel, to demand the cause of the accusation, to have a copy thereof, and to meet the witnesses face to face. In a prosecution for murder, the court, in the absence of accused, ordered a special venire to be summoned for the selection of jurors therefrom. Held,, that the order for the venire was not a part of the trial, but was a mere preliminary step, and accused’s constitutional right to be present at all times was not infringed.
    Constitution cited and construed: Art. 1, sec. 9.
    Oases cited and approved: Andrews v. State, 34 Tenn., 550; Hopkins v. State, 78 Tenn., 206; Jones v. State, 152 Ind., 318; State v. Long, 209 Mo., 366; State v. Clark, 32 La. Ann., 558; State v. Abrams, 11 Or., 169; State v. Simien, 36 La. Ann., 923; Percer v. State, 118 Tenn., 765; State v. Barrington, 198 Mo., 23; Osborn v. State, 24 Ark., 629; Pocket v. State, 5 Tex. App., 552; Ammons v. State, 65 Fla., 166; Ward v. Territory, 8 Okl., 12; Ex Parte Bollman, 4 Cranch. (8 TJ. S.), 75.
    FROM CANNON.
    Appeal from the Circuit Court of Cannon County.— John E. Richardson, Judge.
    H. T. Stewart, Josh Barton, C. L. Cummings and Robert Smartt, for appellant.
    
      Wm. H. Swiggabt, Je., Assistant Attorney-General, for tlie State.
   Me. Justice Williams

delivered tlie opinion of tlie Court.

Lloyd Logan was indicted and tried for tlie mnrder ■of' one William Wallace. Found guilty of murder in the second degree by tlie jury, and Ms puMshment fixed at fifteen years’ confinement in tbe penitentiary, be 3ias appealed and assigned several errors, only one of wbicb is it purposed to consider in tbis opinion.

In tbe absence of tbe accused a venire was ordered by tbe trial judge to be summoned to appear, for tbe selection therefrom of tbe members of tbe jury wbicb should try tbe accused; and in pursuance of that order tbe sheriff acted.

TMs is assigned as error, and it is urged by Ms counsel that tbis amounted to a denial to tbe prisoner of bis constitutional right to be present in person at every step of Ms trial.

Tbe constitution, in tbe embodied Declaration of Rights, art. 1, section 9, provides:

“That in all criminal prosecutions, tbe accused bath tbe right to be beard by himself and bis counsel, to ■demand tbe nature and cause of tbe accusation against Mm, and to have a copy thereof, to meet tbe witnesses face to face, to have compulsory process for obtaining witnesses in his. favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county ... in which the crime shall have been committed.”

In Andrews v. State, 2 Sneed (34 Tenn.), 550, it was held that in criminal cases of the grade of felony, where the life or liberty of the accused is in peril, hé has the right to be present, and must be present, during the trial and until the final judgment, so that there is no jurisdiction to receive a verdict or to pronounce final judgment in his absence.

The words “during the trial” are not to be construed to cover every preliminary step' taken in preparation for the trial. It was ruled in Hopkins v. State, 10 Lea (78 Tenn.), 206, that a change of venue may be granted and ordered in the absence of a prisoner, upon his petition, provided he is under the custody or control of the court and “so circumstanced and situated that the court may command and have his personal attendance.” In accord are Jones v. State, 152 Ind., 318, 53 N. E., 222, and State v. Long, 209 Mo., 366, 108 S. W., 35,

By a decided weight of authority the defendant’s presence is not necessary at the ordering of matters purely preliminary to the trial; as, for example, at the time of fixing the day for the trial (State v. Clark, 32 La. Ann., 558; State v. Abrams, 11 Or., 169, 8 Pac., 327), or of hearing application and granting an order for the attachment of witnesses (State v. Simien, 36 La. Ann., 923).

It was said in the case of Percer v. State, 118 Tenn., 765, 775, 103 S. W., 780, 783, that “defendant’s presence is not necessary during proceedings which, are not part of the trial, hut merely preliminary . . . thereto,” citing Jones v. State, supra. While perhaps not necessary to the decision of the case then in hand, that was a statement of the correct rule of law, as is shown by several reported ease's.

An order directing or authorizing the sheriff to summon a venire to be present at a subsequent date fixed for the trial of an accused is a mere setting on foot of an administrative function, and is not to be deemed a part of the “trial” of the cause at which the presence of the accused is required. State v. Barrington, 198 Mo., 23, 95 S. W., 235; Osborn v. State, 24 Ark., 629; Pocket v. State, 5 Tex. App., 552; Ammons v. State, 65 Fla., 166, 61 South., 496; Ward v. Territory, 8 Okl., 12, 56 Pac., 704.

In the last-cited case it is said that presence at the •'‘trial” only means that the defendant shall be present in court from the beginning of the impaneling of the jury until the reception of the verdict and the discharge of the jury.

It was said by Chief Justice Marshall, in Ex parte Bollman, 4 Cranch (8 U. S.), 75, 2 L. Ed., 554, that before the accused is put upon his trial all the proceedings are ex parte.” Clearly the order for the summoning of the venire, made by the trial judge in the absence of plaintiff in error, was not a violation of his constitutional right. Affirmed.  