12 S.E. 962 | N.C. | 1890
The defendant, in fact, had escaped from custody and was at large when the cause was argued and the determined in the Supreme Court, though that fact was not then known to the Attorney-General or the Court.
Shortly afterwards the defendant was recaptured, and the Governor reissued the warrant for his execution; and now, at this term of the Supreme Court, the defendant made a motion to vacate the orders and judgments made and rendered at least term, and grant him a rehearing upon the exceptions contained in the case on appeal.
The following certificate, upon which the motion of the defendant for a rehearing is made, was filed in this Court on 29 September, 1890: *527
"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 his information he, the said Jacobs, was not in the custody of court during the February Term, 1890, of the Supreme Court, when his appeal was disposed of."
The facts stated in the foregoing affidavit were admitted to be true by the Attorney-General.
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,
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 Court 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.,
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 of 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. Comrs. v. Andrews, supra;Wilson v. Comrs., supra; People v. Genet, supra.
The Court of Appeals of Virginia laid down the rule in Sherman v.Comrs., 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 the supersedeas, 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 (776) same rule was subsequently adopted in Illinois, West Virginia and Alabama. McGowan v. People,
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,
In our case the judgment of the court below was affirmed here, and the Governor issued the death warrant by virtue of section 3, ch. 192, Laws 1887, fixing the time of execution on 26 September, 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 S. v. McMillan,
This Court has repeatedly held that nothing should be done prejudicial to the rights of a person on his trial for a capital felony unless he is actually present; while, on trial for misdemeanors, it is sufficient if the defendant assents through counsel when any order is made or any step taken affecting his rights. S. v. Weaver,
In S. v. Leak, supra, the Court passed upon a motion of counsel for a defendant charged with a misdemeanor (fornication and adultery) to withdraw his appeal, and the motion was allowed. The question whether *532 the appellate court should grant a motion made by counsel and not supported by affidavit or direct authority from one charged with a capital felony, to dismiss the appeal of the latter, did not arise in that case and has never been decided by this Court.
(781) It seems, as already stated, that the Court of Appeals of Virginia not only directed, when notified of the escape of an appellant, that his appeal should stand dismissed unless it should be made to appear that he was in custody before a certain day, but discharged immediately the order that the writ of error should act as a supersedeas.Shearman v. Comrs., supra. We infer that supersedeas is used in the sense of stay of execution, and that the effect of discharging the supersedeas
would be the same as dismissal of an appeal in this Court since the passage of the act of 1887. Abbott Law Dict. (Supersedeas), 523; Williams v.Bruffy,
If we conceded that the right of the accused to be present, or in communication with his counsel, extends beyond the time when the nisiprius court is actually engaged in the trial of the indictment preferred against him, it gives rise to many embarrassing questions. If the defendant has the right to confront his accusers or to be in such a position that he can direct or assist his counsel, after verdict and judgment below, while his appeal is pending, there is even greater reason for his presence, at least by counsel acting under his advice (782) when many preliminary steps are taken by witnesses, prosecuting officers and grand juries. Yet this Court has denied the right of the accused to have a dying declaration excluded on the ground that he could not confront his accuser, and has admitted testimony as to an examination of a defendant's tracks, in his absence, in the face of a similar objection. S. v. Tilghman,
The motion of the counsel for the defendant is not allowed.
Motion refused.
Cited: S. v. Austin,