11 Colo. 343 | Colo. | 1888
Were such proceedings and judgment warranted? By sections 758, 759, General Statutes, petit larceny is declared to be a misdemeanor, and triable in a justice’s court, and a penalty of a fine or imprisonment in jail, or both, upon conviction, is provided. By sections 1020, 2047, General Statutes, it is provided, in such cases, that upon conviction in the justice’s court the defendant may have an appeal to the criminal court. The bond provided for such appeals is conditioned, not for the appearance of the accused, but for the payment of the fine. We have no statute providing for the trial of any offender in his absence, whether the offense charged be a misdemeanor or of other grade; while, on the other hand, section 272 of our Criminal Code provides that all trials for criminal offenses shall be conducted according to the course of the common law, except where a different mode is provided. It will be seen that imprisonment was of the penalty provided for the offense charged. To try a defendant upon such a charge in his absence, and in the absence of his attorney, we think is contrary to correct principles, and is not permissible. People v. Winchell, 7 Cow. 525, and note; 1 Bish. Crim. Proc. (3d ed.) §§ 268-270. It is true, the appeal bond provided for by the statute is not such as to secure the attendance of the accused in the appellate court, but this is matter for the legislature to correct. The defect is not to be supplied by the abrogation, by this court, of well-settled rules. The judgment should be reversed.
Be Prance, 0., concurs. Rising, O., dissents.
For the reasons assigned in the foregoing opinion the judgment is. reversed and the cause remanded.
Reversed.