191 S.E. 749 | N.C. | 1937
The petitioner entered a plea of nolo contendere at the March Term, 1932, Nash Superior Court, to an indictment charging him with abandonment and nonsupport of his wife and children. C. S., 4447; S. v. Bell,
The validity of this judgment, attempting to impose corporal punishment upon the defendant, unless avoided by compliance with the conditions annexed, is challenged on two grounds: First, because entered without the knowledge or presence of the accused; and, secondly, for alternativeness. The first ground of the challenge would seem to be valid, and will be sustained on authority of S. v. Cherry,
Speaking to the first ground of the challenge in the Cherry case, supra,Hoke, J., delivering the opinion of the Court, said: "While our decisions have established that in case of waiver the presence of the accused is not necessary to a valid trial and conviction, all of the authorities here *704
and elsewhere, so far as we have examined, are to the effect that when a sentence, either in felonies less than capital or in misdemeanors, involves and includes corporal punishment, the presence of the accused is essential. Thus, in S. v. Paylor,
For the reason stated, the judgment entered at the December Term, 1936, will be stricken out.
Error.