State v. . Cherry

I-Ioke, J. It is the law of this State, a principle having-prominent place in our Declaration of Rights, that in every criminal prosecution the defendant has the right to be informed of the accusation against him and to confront his accusers and their witnesses. Applying the principle, this Court has held in several cases that in capital trials this right to be present in the court below cannot be waived, but that the presence of the prisoner is essential at all stages of the trial. In felonies less than capital and in misdemeanors the same right to be present exists, but may be voluntarily waived by the accused, a limitation being that in the case of felonies certainly this waiver may not be made by counsel unless expressly authorized thereto. S. v. Jenkins, 84 N. C., 812. The decisions are also to the effect that when the accused voluntarily absents himself, and more especially when he has fled the court, such conduct may be considered and construed as a waiver, and in that event the presence of the accused is not regarded as essential to a valid trial and conviction. S. v. Pierce, 123 N. C., 745; S. v. Kelly, 97 N. C., 404; S. v. Paylor, 89 N. C., 540; Clark’s Criminal Procedure, p. 423. Speaking to this question in Kelly’s case, supra, Merrimon, J., delivering the opinion of the Court, said: “While it is settled in this State that the prisoner has the right to be so present during his trial upon a charge for a felonious offense not *627 capital, there is neither principle nor statute nor judicial precedent that makes it essential that he shall be. Nor in our judgment is there any common principle of justice essential to the security of personal right, safety, or liberty that so requires.” And further in the same opinion: “A party charged with a felony less than capital has the right to give bail and be at large unless at the trial the court shall order him into close custody. In such case, if defendant flee, pending the trial, the court is not bound to stop the trial and discharge the jury and then give the defendant a new trial. To do so would compromise the dignity of the court, trifle with the administration of justice, and encourage guilty parties to escape, etc.” While our decisions have established that in case of waiver the presence of the accused is not necessary to a valid trial and conviction, all of the authorities here and elsewhere, so far as we have examined, are to the effect that when a sentence, either in felonies less than capital or in misdemeanors, involves and includes corporal punishment, the presence of the accused is essential. Thus, in S. v. Paylor, supra, Ashe, J., delivering the opinion, said: “But where the punishment is corporal the prisoner must be present, as was held in Rex v. Duke, Holt, 399, where the prisoner was convicted of perjury, Holt, C. J., saying: ‘Judgment cannot be given against any man in his absence for corporal punishment; he must be present when it is done.’ ” On authority, therefore, while the trial and conviction of these defendants may very well be sustained, their sentence when absent, involving as it does their corporal punishment, must be declared invalid. S. v. Dolan, 58 W. Va., 263, with a learned note in 6 A. and E. Cases, 450. This conclusion, however, does not require that the entire proceedings should be disregarded and a new trial ordered. In this and similar cases the accepted ruling is that the judgment be set aside and the cause remanded with directions that a lawful sentence be imposed. S. v. Black, 150 N. C., 866; S. v. Lawrence, 81 N. C., 522; Gole v. State, 10 Ark., 318; Kelly v. State, 11 Miss., 518. It may be well to note that the disposition we make of this *628 appeal in no way trenches upon the principle prevailing with us, that when “pending an appeal a convicted defendant breaks jail and flees the jurisdiction of the court, such conduct may be construed and considered an abandonment of bis appeal.” S. v. Keebler, 145 N. C., 650. In this case appellants are both in custody and tbeir appeal is being regularly prosecuted. For the reasons heretofore given, the judgment will be set aside and the cause remanded, to the end that sentence be lawfully imposed. Error.