People v. Nesce
| Decision Date | 21 February 1911 |
| Citation | 201 N.Y. 111,94 N.E. 655 |
| Parties | PEOPLE v. NESCE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Trial Term, Seneca County.
Joseph Nesce, alias Joseph Nash, was convicted of murder in the first degree, and he appeals. Reversed, with directions.
Hermon A. Carmer and Daniel Moran, for appellant.
George W. Pontius, Dist. Atty. (J. N. Hammond, of counsel), for the People.
At the March, 1910, Trial Term of the Supreme Court, Seneca county, the defendant was tried and convicted of the crime of murder in the first degree. After the jury had rendered its verdict, the defendant's counsel waived the two days' stay given by the statute and consented that the court might then proceed to judgment. Thereupon the district attorney moved the sentence of the defendant. He was then sworn, and answered as to his age, place of birth, etc., but was not asked as to whether he had anything to say why sentence should not be pronounced against him. The court thereupon pronounced judgment, directing that he be conveyed to the state prison at Auburn to be there confined until the week beginning May 15, 1910, and that duringthat week he be put to death in the manner provided by law. The appeal taken from the judgment so entered brings up for review the single question as to whether reversible error was thus committed by the court.
It is contended on the part of the district attorney that the defendant's counsel had waived any further right on behalf of the defendant to show cause why judgment should not be pronounced by the conversation that took place preceding the motion of the district attorney for judgment; but a careful reading of the record upon that question leads us to the conclusion that there was no waiver of the rights of the defendant in this regard, if waiver there could be.
It has been one of the indispensable requirements of the common law that no person should have the sentence of death passed against him without first being given the opportunity to personally speak for himself and show cause, if he can, why sentence should not be pronounced against him. This right has been jealously guarded from very ancient times. 1 Chitty, Cr. Law, 700; Barbour, Cr. Law (2d Ed.) 370. And it is now protected by statute. Code of Cr. Pro. § 480.
In the case of Messner v. People, 45 N. Y. 1, the failure to give the defendant the privilege thus accorded him was held to be reversible error, and a new trial was granted. There was a dissent, however, and one of the judges voted to remit the proceedings to the Oyer and Terminer to give judgment on the conviction.
In the case of Ball v. United States, 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377, it is said that at common law in all capital felonies it was essential that it should appear of record that the defendant was asked before sentence if he had anything to say why it should not be pronounced.
In the case of People v. Faber, 199 N. Y. 256, 92 N. E. 674, it was held that the failure to give the defendant the opportunity to speak for...
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Couch v. United States
...118, 11 S.Ct. 761, 35 L.Ed. 377; Keech v. State, 15 Fla. 591; Jones v. State, 51 Miss. 718; James v. State, 45 Miss. 572; People v. Nesce, 201 N.Y. 111, 94 N.E. 655; Hamilton v. Commonwealth, 4 Harris 129, 16 Pa. 129; Orfield, op. cit. supra at 539; 22 Minn.L. Rev. 733; 62 U. of Pa.L.Rev. 7......
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People ex rel. Emanuel v. McMann
...a substantial legal right that cannot be waived (People ex rel. Miller v. Martin, 1 N.Y.2d 406, 153 N.Y.S.2d 202, supra; People v. Nesce, 201 N.Y. 111, 94 N.E. 655; Messner v. People, 45 N.Y. 1). The sole relief, however, to which a defendant is entitled is to be remanded to the sentencing ......
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People v. Schwartz
...Criminal Procedure was followed. Hence the defendant's claim was reviewable upon an appeal of the judgment of conviction (People v. Nesce, 201 N.Y. 111, 94 N.E. 655; People v. Craig, 295 N.Y. 116, 65 N.E.2d 192). Therefore, the defendant may not be permitted to forego his right of appeal fr......
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People v. Brown
...should be remanded for resentencing so that he can finally be given an opportunity to speak on his own behalf (see People v. Nesce, 201 N.Y. 111, 114, 94 N.E. 655 [1911] [holding that defendant denied the right to allocution was not entitled to a new trial, but reversing the judgment remitt......