41 Kan. 516 | Kan. | 1889
The opinion of the court was delivered by
William K. Baxter was convicted in the district court of Meade county of assault and battery, and he was sentenced to pay a fine of $ 1 and costs, and to stand committed until the fine and costs were paid. He appeals, and raises two points against the validity of the judgment. It
It is argued that this action is in conflict with § 245 of the criminal code, which provides that, “for the purpose of judgment, if the conviction be for an offense punishable by imprisonment, the defendant must be personally present; if for a fine only, some responsible person must undertake for him to pay the judgment and costs; judgment may then be rendered in his absence;” and that it is such an error as will require a reversal. The defendant should have been brought into court when the subsequent order was made; but it is difficult to see that he suffered any prejudice from the failure to do so. In respect to the order which was made in his absence, the court had no discretion, for § 251 of the criminal code provides that when the defendant is adjudged to pay any fine and costs, the court shall order him to be committed to the jail of the county until the same are paid. The general rule, independent of statute, is that in all cases where corporal punishment is inflicted, the defendant must be present in court when the sentence is pronounced; and his presence is equally necessary when any modification of such a sentence is made. The modification made in the present case, however, did not change or affect the sentence originally imposed as a punishment for the offense of which the defendant was convicted. The order committing the defendant to the jail of the county until the fine and costs are paid is no part of the sentence, and the imprisonment is no part of the punishment inflicted for the commission of the offense. It is only a means provided for the enforcement of the penalty imposed in the sentence or judgment. (In re Boyd, 34 Kas. 573.) The code itself recognizes a distinction between the sentence or judgment and
The second point raised is, that the judge of the court gave oral instructions to the jury after it had retired to deliberate upon the verdict. Some statements were made by the court in the absence of the defendant, but it was not done secretly, as they were made- in the presence of the county attorney, as well as the attorney of the defendant. The occurrence, as related in the record, is that, in response to the question of one of the jurors, the court stated orally to the jury that “the failure of the defendant to testify should not be construed against him; and in response to another question by a juror, the court orally expressed its recollection of the evidence as to whether any person other than the defendant and Charles A. Stevens and his sister was in a position to see and hear all that was done and said at the time of the alleged assault as charged in the information, the court stating orally that it did not recollect any testimony to that effect. And both the county attorney and counsel for the defendant addressed some remarks to the court in the presence of the jury and in the absence of the defendant, and without his knowledge or consent, the counsel for defendant expressing himself as being opposed to the court responding to other interrogatories by the members of the jury.” As will be seen, the remarks of the court were mostly made for defendant’s benefit and in his favor. It seems to have been so regarded by
We think no errors were committed which require a reversal, and hence the judgment of conviction will be affirmed.
