Gray v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

It is urgently insisted that we were in error in holding that the learned trial judge did not abuse his discretion in permitting the hand-cuffs to remain on appellant during his trial. Appellant cites and relies principally upon State v. Kling, 1 Mo. App. 438 , and People v. Harrington, 42 Calif., 165. Kling’s case is perhaps the strongest which can be found supporting his contention, but even in that opinion exceptions are recognized to the general rule forbidding prisoners to remain fettered during trial. However, we fail to see so very great difference in shackling the feet and binding the hands, a distinction apparently made in that case, especially as to the effect of either method of restraint upon the minds of the jury. When Kling’s case was reversed by the Court of Appeals of Missouri, the State appealed to the Supreme Court of that State.” The opinion of the latter court will be found in 64 Mo. Rep. 591 . We quote from the syllabus of that opinion:

“As a general rule a prisoner is entitled as a matter of right to be freed from his shackles when brought into the court room for trial, but this rule is not of universal application. The court has the power to take all necessary steps to have the trial a quiet, safe one, even to binding the prisoner with fetters. But there must be some good and sufficient reason for pursuing such extraordinary course, else the judgment of conviction will be reversed.’’

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The Supreme Court upheld the decision of the Court of Appeals upon the finding that the facts in the particular.case did not justify the action of the court in trying Kling in shackles, but recognized the doctrine shown in the quotation last above. Harrington’s case (supra) does not aid us materially save in the discussion of general principles: No circumstances or facts were claimed to exist making it necessary to leave him, in irons during the trial. It appears to have been purely an arbitrary order of the court that he be so tried. After reviewing many of the authorities referred to in Kling’s case it is said in Faire v. State, 58 Ala. 74 .

“As we understand the foregoing authorities from the learned Blackstone down, there is no absolute, unbending rule that a prisoner on trial for crime shall in no case be fettered. And, inasmuch as there are cases in which it is permissible to try prisoners with shackles on them, we confess ourselves unable to lay down any rule for the guidance of the primary courts, except to leave the question to their sound and enlightened discretion.”

The court then declined to further consider the question, holding that it had no right to review a discretionary act of the trial judge. With this last holding we are not in accord. Faire’s case was followed in New Mexico v. Kelly, 2 N. M. 292, save as to the latter announcement regarding which it is in consonance with our own view that the question as to whether the trial judge abused his discretion may be reviewed. See also State v. Allen, 45 W. Va. 65 : State v. Miller, 78 Wash. 268 ; McPherson v. State, 178 Ind. 583 . Upon the general subject, in addition to the statement from Bishop’s New Crim. Proc. found in our original opinion we quote-from Wharton’s Crim. Proc. Vol.

2, See.

476:

“If violent and obstreperous, or if escape be threatened, a defendant may be placed in shackles during trial. Such restraint, however, should not be imposed except in cases of immediate necessity, and where it appears without such necessity by the record there will be a reversal.”

Prom an examination of the text books and the decisions cited in our original opinion and here, as well as many other authorities collated by Wharton and Bishop, and referred to in some of the cases mentioned the rule may be fairly stated that if the record discloses no good reason for having the prisoner manacled during the trial the same will be cause for reversal; on the other hand, if in the sound discretion of the court it appears necessary to retain his shackles to prevent the escape or self destruction of the prisoner, or to px*event him from injuring bystanders or officers of the court, or if xxeeessary to maintain a quiet and peaceable trial, the court may try the prisoner without having the shackles removed; his action being subject to the closest scrutiny and review by the appellate court.

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Upon hearing the motion for new trial relative to the complaint at keeping hand-cuffs on appellant the sheriff testified that appellant told him a number of times while he had him in custody that he would kill himself; that when he went to remove appellant from the jail in New Boston to the Paris jail he resisted having the handcuffs put on him then,' although the removal was at night, and told the officers he “would die and go to hell before he would permit them to put the cuffs on him; ’ ’ that it was necessary for the officers to choke him down before they could hand-cuff him upon that occasion; that on the road between New Boston and Paris appellant made an assault on the driver of the car; striking him upon the head with the hand-cuffs; that during the trial he threatened to burst his brains out against the walls of his cell, and did butt his head against the wall on one occasion. He had made one attempt to cut his throat with a safety razor blade and during the trial another was found in his pocket. The officers also found and took from him a long finger nail file. He asked the officers on the way from New Boston to kill him, stating that he would probably not get there alive, and that he wanted to die. It is apparent that appellant was regarded as a desperate man by the officers and they feared he would undertake to kill himself or do something to force them to kill him, and that they so informed the learned trial judge. It appears that he was reluctant to permit the trial to go on with the prisioner handcuffed, the idea of a trial under such conditions being repugnant to his sense of justice as it is to ours, and one which should not be tolerated save in exceptional cases. After again reviewing the record we feel that we cannot in good conscience say the trial judge was guilty of an abuse of discretion.

We desire to make it perfectly plain that we regard a trial with the prisoner in irons as obnoxious to the spirit of our laws, and all ideas of justice, and it is only when the record brings the case clearly within one of the rare exceptions that we would consent for a conviction to stand. Before a judge should permit a ease to proceed under such circumstances he should be very sure of his ground.

The motion for rehearing is overruled.