Harris v. People

• Decision Date: 31 October 1889
• Citation: 130 Ill. 457,22 N.E. 826
• Parties: HARRIS v. PEOPLE.
• Court: Illinois Supreme Court

130 Ill. 457

22 N.E. 826

HARRIS

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Error to circuit court, Macon county; JAMES F. HUGHES, Judge.John J. Rea

, for plaintiff in error.

George Hunt, Atty. Gen., and J. R. Mills, State's Atty., for the People.

BAILEY, J.

At the September term, 1887, of the circuit court of Macon county, the plaintiff in error was indicted by the grand jury for the crime of forgery. At the January term, 1888, of said court he was duly arraigned, and pleaded not guilty. On the 8th, 9th, and 10th days of October, 1888, those being days of the September term, 1888, of said court, he was tried by a jury, who found him guilty, and fixed the term of his imprisonment in the penitentiary at six years. It affirmatively appears from the transcript of the record that in the foregoing proceedings, up to and including the verdict, the plaintiff in error was present in court, both in person and by attorney. The record contains no bill of exceptions, but the clerk has copied into the transcript a paper purporting to be a motion by the defendant's counsel for a new trial, and appearing, from the indorsement thereon, to have been filed October 13, 1888. The order containing the sentence of the court was entered October 25, 1888, that also being one of the days of said September term, and recites as follows: ‘And now on this day came the people, by the state's attorney, and the defendant by his attorneys, and, the motion made by the defendant, at a former day of this term, for a new trial of this cause, being heard and duly considered, is by the court overruled;’ and sentence of the court was thereupon pronounced in accordance with the verdict of the jury. The assignments of error are all based upon the fact that the record fails to show affirmatively that the defendant personally appeared in court at the time the motion for a new trial was heard and decided, and the sentence of the court was pronounced.

It was been a well established rule of the common law from an early period that a prisoner accused of a felony must be arraigned in person, and must plead in person, and his personal appearance is required throughout the trial, and at the time sentence is pronounced. As said by Mr. Chitty: ‘Althougha defendant accused only of a misdemeanor may be found guilty in his absence, this can never be done in capital felonies, but it is necessary that he should personally attend; and it should so appear on the record.’ 1 Chit. Crim. Law, 414. A leading authority on this question is Rex v. Harris, 1 Ld. Raym. 267, Comb. 447, Holt, 399, Skin. 684, in which it was held by Lord HOLT that a judgment cannot be given against any man in his absence for a corporal punishment. The same rule has been generally adopted in this country. Mr. Bishop, in discussing the question in its relation to the imposition of a sentence, says: ‘Where the offense is a misdemeanor, of a kind punishable merely by a fine, or, though by fine and imprisonment, where a fine only is to be imposed, the doctrine seems pretty plainly to be that it is within the discretion of the court to render judgment in the defendant's absence. But if there is to be imprisonment, or any other punishment higher than a fine, whether in treason, felony, or misdemeanor, the defendant must be personally present.’ 1 Bish. Crim. Proc. § 275. This doctrine is supported by the following decisions: People v. Winchell, 7 Cow. 525;Rolls v. State, 52 Miss. 391;Hooker v. Com., 13 Grat. 763;Sperry v. Com., 9 Leigh, 625; Hamilton v. Com., 16 Pa. St. 129; Prine v. Com., 18 Pa. St. 103; Peters v. State, 39 Ala. 681; Gibson v. State, Id. 693; Graham v. State, 40 Ala. 659; Andrews v. State, 2 Sneed, 549; Smith v. People, 8 Colo. 457,8 Pac. Rep. 920;State v. Davenport, 33 La. Ann. 231. The fact that the defendant to a prosecution for a felony was present during the trial, and at the imposition of sentence, must be shown affirmatively by the record. A failure in this respect will not be aided by those presumptions which the law ordinarily raises in support of the judgments of courts of general jurisdiction. This apparent exception to the general rule may perhaps be attributed to an abundant tenderness for the right secured by the constitution to the accused to be confrontedby the witnesses against him, and to be heard by himself and counsel; but, however this may be, it seems to be well supported by the authorities. The rule that, to sustain a judgment of conviction for a felony, the record must affirmatively show that the prisoner was personally present in court when sentence was pronounced against him, is sustained by most of the above authorities cited, and also by the following cases: Scaggs v. State, 8 Smedes & M. 722; State v. Cross, 27 Mo. 332; State v. Matthews, 20 Mo. 55;Dyson v. State, 26 Miss. 362;State v. Revells, 31 La. Ann. 387; State v. Smith, Id. 406. The case before us is clearly distinguishable from Shirmer v. People, 33 Ill. 276. There the record showed no interval between the arraignment of the prisoner, the trial, verdict, and judgment. The whole proceeding appearing to have taken place on the same occasion, and in consecutive and continuous order, and it appearing that the prisoner was present, as he necessarily must have been, at the arraignment, it was held that his presence during the whole proceeding, down to the moment sentence was passed upon him, was a matter which might fairly be implied. In the present case the sentence was not pronounced until 15 days after the conclusion of the trial, and no inference as to the presence of the prisoner in court at the date of the sentence can be drawn from the fact that he was in court at the time of the trial and verdict. Nor does this case come within the principle laid down in Sahlinger v. People, 102 Ill. 241. There the prisoner, after the trial was entered upon, voluntarily abandoned the court-room, and refused to appear; and it was held that he would be regarded as having waived the right to be present, and that the court was under no obligation to stop the trial, but was at liberty to proceed, in his absence, to final judgment. In this case, nothing whatever is shown as to the reason why the prisoner was not in court at the time sentence was pronounced,and there is nothing, therefore, upon which a waiver of his legal right to be present in person can be based.

It necessarily follows from what has been said that there is error in the record; and it remains to be seen how such error may be corrected, so as to restore the defendant to all the rights of which he has thereby been deprived. The errors assigned call in question- First, the hearing and decision of the motion for a new trial; and, second, the imposition of sentence, without the personal presence of the defendant. It is doubtful, to say the least, whether, in prosecutions for felonies, the argument and decision of a motion for a new trial is a proceeding which necessarily requires the personal presence of the accused. The decisions on this question are not altogether harmonious; but it is held by various courts, whose opinions are usually accorded a high degree of consideration, that his personal presence is not essential between the verdict and the judgment, upon the presentation and disposition of motions involving a discussion of mere questions of law,-and among these are included motions for a new trial. In many cases where...