State v. Jacobs

• Decision Date: 06 October 1890
• Citation: 11 S.E. 962,107 N.C. 772
• Parties: STATE v. JACOBS
• Court: North Carolina Supreme Court

11 S.E. 962

107 N.C. 772

STATE v. JACOBS

Supreme Court of North Carolina

October 6, 1890

Indictment for murder tried at May term, 1889, of the superior court of Robeson county, before GILMER, J. The following certificate upon which the motion of the defendant for a rehearing is made, was filed in this court on September 29, 1890: "I C. B. Townsend, clerk of the superior court of Robeson, N C., do hereby certify that Stephen Jacobs, who was lately convicted of murder in this county and who appealed to the supreme court, and pending the appeal escaped from the jail of Robeson county about August, 1889, and was not recaptured till about August, 1890; that according to the best of my information he, the said Jacobs, was not in the custody of the court during the February term, 1890, of the supreme court, when his appeal was disposed of." Signed and sealed by said Townsend, on September 25, 1890. The facts stated in the foregoing affidavit were admitted to be true by the attorney general.

Where after trial, conviction, and judgment in a murder case, defendant escapes from custody pending an appeal, the appellate court, having cognizance only of questions of law, has power, during the prisoner's absence from custody, to hear the exceptions, and affirm the judgment.

The Attorney General, for the State.

B. C. Beckwith, for petitioner.

AVERY J.

The exceptions taken by the defendant, Jacobs, were reviewed at the last term of this court in a well-considered opinion filed by Justice CLARK. 106 N.C. 695, 10 S.E. Rep. 1031. It now appears by certificate of the clerk of the superior court of Robeson county, and is admitted by the attorney general for the state, that, at the time when the appeal was heard here, the prisoner Jacobs had escaped from custody, and was not recaptured till about August, 1890. Counsel now insist that this court shall treat the decision made at the February term as inconclusive upon the prisoner, and hear another argument of his appeal, because he was neither actually nor constructively in custody when the exceptions were argued. In appellate courts, where questions of law only can be reviewed, and in the absence of any statute specifically regulating the procedure, if there be satisfactory evidence that a defendant, whose appeal is founded upon exceptions entered on the trial below, and has been regularly called for hearing, has escaped, and is not in actual or constructive custody, it is clearly within the sound discretion of the courts to determine whether the exceptions shall be argued and passed upon, the appeal dismissed, or the hearing postponed to await the recapture of the alleged offender. Smith v. U. S., 94 U.S. 97; Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390; Leftwich's Case, 20 Grat. 722; Sherman v. Com., 14 Grat. 677; McGowan v. People, 104 Ill. 100; Wilson v. Com., 10 Bush, 526; State v. Sites, 20 W.Va. 16. In the exercise of this power, the courts of the different states have not adopted uniform rules of practice, even where there are no statutory or constitutional provisions regulating the mode of procedure. But while the general if not universal rule has been to refuse a motion of a defendant who had absconded, and put himself in contempt of court, to dispose of his appeal, or make any order affecting it at his instance or for his benefit, the courts of the different states have, as a general rule where there was no express statutory requirement in reference to it, and where the prosecuting officer was the moving party, continued, dismissed, or heard the appeal according to the circumstances of the case, or the early precedents of the particular court. Anon., 31 Me. 592; Com. v. Andrews, 97 Mass. 544; People v. Genet, 59 N.Y. 81; Warwick v. State, 73 Ala. 486. In Smith v. U.S., supra, WAITE, C.J., delivering the opinion, said: "It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party suing out the writ is where he can be made to respond to any judgment we may render. *** If we affirm the judgment he is not likely to appear to submit to his sentence. If we reverse it, and order a new trial, he will appear or not as he may consider most for his interest." The reasoning of the learned chief justice has been adopted, and his language quoted in many of the more recent decisions, as to the right to refuse a request from the defendant that the court pass upon his exceptions while he is absconding, and in contempt. And, even where the appellate courts review the facts, a defendant who escapes pending his appeal is deemed to have waived his right to be present on the final hearing upon his assignment of errors. Com. v. Andrews, supra; Wilson v. Com., supra; People v. Genet, supra. The court of appeals of Virginia laid down the rule in Sherman v. Com., supra, that where a prisoner convicted of a felony has obtained a writ of error which was directed to operate as a supersedeas, and then escaped from jail, the appellate court will discharge so much of the order as awards thesupersedeas, and direct that the writ of error be dismissed on a day certain, unless the defendant shall have been, meantime, rearrested, and placed in custody of the proper officer. The same rule was subsequently adopted in Illinois, West Virginia, and Alabama. McGowan v. People, 104 Ill. 100; State v. Sites, supra; Warwick v. State, supra. The courts of Georgia, Indiana, and Kentucky have concurred in holding that it is the proper practice to dismiss, on motion of the prosecution, unconditionally, an appeal by one charged with a felony where it is made to appear satisfactorily that he has escaped custody pending the appeal, and is still at large. Madden v. State, 70 Ga. 383; Sargent v. State, 96 Ind. 63; Wilson v. Com., supra. In Leftwich's Case, supra, the court of appeals of Virginia, having held that the judgment of the circuit court, by virtue of which the defendant had been sent to the penitentiary for three years, was erroneous, ordered that he be brought before the appellate court by habeas corpus, when it appeared that he had escaped, and was not in custody at the time of the hearing. The court refused to set aside the judgment sustaining the exceptions of the defendant.

In our case the judgment of the court below was affirmed here, and the governor issued the death-warrant by virtue of section 3 c. 192, Laws 1887, fixing the time of execution on September 26th, but has respited the prisoner in order that the question presented by the motion before us might be considered. So that we are confronted with a question not directly raised in any of the cases already cited, though it was discussed, arguendo, in a few of them, and covered by the broad propositions stated in others. In the case of State v. McMillan, 94 N.C. 945, it was declared to be the settled practice of this court to refuse the motion of the attorney general to dismiss appeals where the defendant charged with a felony escaped after filing his exceptions below, and was not in custody when the case was called for argument in this court, and this rule was enforced in two other cases subsequently considered at the same term: State v. Pickett, 94 N.C. 971; State v. Brocksville, Id. 972. The present chief justice, delivering the opinion in State v. McMillan, said: "The court will not do a vain and nugatory thing. The appellant may never be rearrested. *** The decision would be empty and fruitless. The court will not ordinarily hear and determine an appeal when it sees that its orders and judgments cannot be enforced by itself or through the superior court, as the law directs." The provisions of chapters 191 and 192, Laws 1887, enacted since that opinion was filed, meet the argument that it would prove fruitless to dismiss an appeal, which a defendant has voluntarily waived his right to prosecute, by giving the clerk, or the governor, or both conjointly, the power to order the original judgment which has been stayed, not vacated, to be executed or enforced. Since the passage of the acts constituting the chapters mentioned, whether an appeal taken by a defendant in a criminal action be dismissed or affirmed in this court, the stay of execution will be removed, and the law will require the sentence of the court to be carried into effect in the manner indicated in the statute, either by warrant of the governor or by virtue of execution issued directly to the sheriff of the county. This radical change in the manner of executing the criminal law obviates the objection growing out of the fact that it remains for the court below, not only under its process to recapture, but likewise to resentence at a regular term. In State v. McMillan, the court say: "Besides, to dismiss the appeal might raise embarrassing questions in the superior court if the appellant should be rearrested. Would the dismissal reinstate the judgment of death vacated by the appeal, or operate to leave that judgment in force, as if no appeal had been taken? Could such a result supervene in the absence of the prisoner whether such absence be occasioned by his escape or otherwise?" The question propounded by the court has been, in part, met by the express provision of the statute, and it remains for us to construe the law so as to answer the interrogatory left open still, by deciding whether a judgment of this court rendered after the prisoner's escape, and before his recapture, would constitute a valid disposition of the appeal, so that the stay of execution below would be removed. The discussion of this point (incidentally, and entirely obiter) by some of the courts has given rise to confusion, because of the failure to advert to the fact that counsel were not allowed in England until 1836 (by 6 & 7 Wm. IV., c. 114,) to make a full defense for...