265 F. 3 | 8th Cir. | 1920
These appeals bring here and challenge final orders discharging Frank Nolan, Jack Denver, and George Esterbrook, on habeas corpus, from custody of appellant as Warden of the United States Penitentiary at Leavenworth.' They were incarcerated there in 1915, and held until 1919, a period of four years, less allowance for good behavior.
“AVe are of opinion that it was not within the power of the accused, or his counsel, to dispense with the statutory requirement as to his personal presence at the trial. The argument -to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object ot' the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. * * * if j10 i)0 deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by -the constitution.” Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262.
In that case the absence of the defendant occurred during the empaneling of the jury. Again, in Lewis v. United States, 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011:
“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. AVhile this rule has, at times and in 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 was not permissible that a prisoner be absent at the time of sentence. 3 Wharton on Criminal Eaw (7th Ed.) § 3000; 1 Bishop’s New Criminal Procedure, § 3291. In Ball v. United States, 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377, it is said:
“At common law no judgment for corporal punishment could be pronounced against a man in his absence.’’
The reasons on which the principle rests, as given in Fielden v. People, 128 Ill. 595, 21 N. E. 584, were approved in that case, which ivas pending on error; but we conceived the declaration of the court to mean that there was a lack of power to pass sentence under the conditions stated. Mr. Cooley, in his work on Constitutional Eimitations (5th Ed.) page 390, states the principle in those terms:
“In cases of felony, where the prisoner’s life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment. If lie be absent, either in prison or by escape, there*6 is a want of jurisdiction over the person, and the court cannot proceed with the trial, or receive the verdict, or pronounce the final judgment.”
And some of the cases which he cites in support expressly hold that a judgment and sentence so entered is void. Andrews v. State, 2 Sneed (Tenn.) 550; Witt v. State, 5 Cold. (Tenn.) 11. Most of the cases in which the principle had been declared and applied were on error; but if the court was without jurisdiction to impose the sentence, release from custody may be obtained by the writ of habeas corpus, notwithstanding the right of appellees to challenge the validity of the court’s action by writ of error also. Stevens v. McClaughry, 207 Fed. 18, 25, 125 C. C. A. 102, 51 L. R. A. (N. S.) 390. Besides, it was unnecessary to specifically hold the judgment void or voidable on writ of error. Either was sufficient for purposes there in hand. See ex parte Waterman (D. C.) 33 Fed. 29; Brown v. State, 29 Fla. 543, 10 South. 736; Hamilton v. Commonwealth, 16 Pa. 129, 55 Am. Dec. 485; Peters v. State, 39 Ala. 681; People v. Winchell, 7 Cow. (N.Y.) 525, note b.
Inasmuch as appellees had been held in confinement for four years, the district attorney who prosecuted the case was out of office, the District Judge who accepted, the pleas was dead, and the great lapse of time that had occurred since the offenses were committed, the usual procedure and order (In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149) was not adopted.
Affirmed;