This was a writ of error sued out to review a judgment of the circuit court of the United States for the western district of Arkansas, imposing a sentence of death upon Alexander Lewis, plaintiff in error, for the murder of one Benjamin C. Tarver, at the Cherokee Nation, in the Indian country.
It appears by the record that on the trial of the case, and after the accused had pleaded not guilty to the indictment, the court disrected two lists of 37 qualified jurymen to be made out by the clerk, one to be given to the district attorney, and one to the counsel for the defendant; and that the court further directed each side to proceed with its challenges independent of the other, and without knowledge on the part of either as to what challenges had been made by the other.
It further appears by the record that to this method of proceeding in that regard the defendant at the time excepted, but was required to proceed to make his challenges; that he challenged 20 persons from the list of 37 persons from which he made his challenges, but in doing so he challenged 3 jurors who were also challenged by the attorney for the government.
It further appears that the government, by its district attorney, challenged from the list of 37 persons 5 persons, 3 of whom were the same persons challenged by the defendant, and that this fact was made to appear from the lists of jurors used by the government in making its challenges and the defendant in making his challenges.
To the happening of the fact that both parties challenged the same three jurors the defendant at the time objected, but the court overruled the objection, and directed the jury to be called from the said two lists impaneled and sworn, to which the defendant at the time excepted.
The assignments of error ask us to consider the validity of the method of exercising his rights of challenge, imposed upon the defendant by the order of the court, and also the propriety of the instruction given by the court to the jury on the subject of the defense of an alibi, by giving prominence to the cautionary rules by which they should weigh this class of testimony, and particularly in saying to the jury that it was a defense often resorted to, and often attempted to be sustained and made effective by fraud, subornation, and perjury.
A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has at times, and in the cases of misdemeanors, been somewhat relaxed, yet in felonies it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. 'It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defense with indulgence.' Prine v. Com., 18 Pa. St. 103, per Gilbson, C. J. And it appears to be well settled that, where the personal presence is necessary in point of law, the record must show the fact. Thus in a Virginia case (Hooker v. Com., 13 Grat. 763) the court observed that the record showed that on two occasions during the trial the prisoner appeared by attorney, and that there was nothing to show that he was personally present in court on either day, and added: 'This is probably the result of mere inadvertence in making up the record, yet this court must look only to the record as it is. * * * It is the right of any one, when prosecuted on a capital or criminal charge, to be confronted with the accusers and witnesses; and it is within the scope of this right that he be present, not only when the jury are hearing his case, but at any subsequent stage when anything may be done in the prosecution by which he is to be affected.' Thereupon the judgment was reversed. And in the case of Dunn v. Com., 6 Pa. St. 384, it was held that the record in a capital case must show affirmatively the prisoner's presence in court, and that it was not allowable to indulge the presumption that everything was rightly done until the contrary appears. Ball v. U.S., 140 U.S. 118, 11 Sup. Ct. Rep. 761, is to the same effect.