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Opinion of the Court.

and keeping, at hard labor during the term of their natural lives. The said commutation papers would have been sent, as is usual, directly to you. I desired, however, that the sheriff might temporarily have said papers in his possession on the day when said Fielden and Schwab, with several other persons named in said sentence which was pronounced against them, were to be executed on the 11th day of November, 1887, that he might be able by said papers to show why the sentence of said Samuel Fielden and Michael Schwab was not carried into execution, as pronounced by said court against them.”

It is averred in the petition for the writ of habeas corpus that the recital in the judgment of the Supreme Court of Illinois, that “on this day came again the said parties,” was and is false and untrue, in that the petitioner was, before and at the date of said order, and up to and including November 12th, 1887, imprisoned, continuously, in the county jail of Cook County, and was not, when the order of September 14th, 1887, was made, present personally or by counsel in that court, nor had he notice, personally or by counsel, to be present there on

that day.

The petitioner claimed that his detention in the penitentiary, and his confinement there at hard labor, were in violation of the Constitution and laws both of Illinois and the United States.

The demurrer to the petition for the writ admits that the judgment of the Supreme Court of Illinois of September 14th, 1887, was rendered in the absence of both the appellant and his counsel, and without notice to either that the case would be disposed of at that time. It is, therefore, contended by the appellant that the judgment was void, as not being that due process of law required by the Constitution of the United States, where life or liberty is involved.

At common law, it was deemed essential in capital cases, that inquiry be made of the defendant, before judgment was passed, whether he had anything to say why the sentence of death should not be pronounced upon him ; thus giving him an opportunity to allege any ground of arrest, or to plead a pardon, if he had obtained one, or to urge any other legal ob

Opinion of the Court.

jection to further proceedings against him. This privilege was deemed of such substantial value to the accused, that the judgment would be reversed if the record did not show that it was accorded to him. Ball v. United States, 140 U. S. 118, 129; 1 Chitty's Crim. Law, 699, 700; Rex v. Geary, 2 Salk. 630; King v. Speke, 3 Salk. 358; Anonymous, 3 Mod. 266; 1 Archbold's Crim. Prac. & Plead. (Pomeroy's edition) 577, 578. And it has been so ruled in the courts of some of the States. Ilamilton v. Commonwealth, 16 Penn. St. 129, 133; Messner v. People, 45 N. Y. 1, 5; James v. State, 45 Mississippi, 572, 579; Crim v. State, 43 Alabama, 53, 56; Perry v. State, 43 Alabama, 53; State v. Jennings, 24 Kansas, 642, 659; Keech v. State, 15 Florida, 591, 609; Grady v. State, 11 Georgia, 253, 257; Safford v. The People, 1 Parker's Crim. Rep. 474, 476.

But this rule of the common law, as the authorities clearly show, applied to the court of original jurisdiction which pronounced the sentence, and not to an appellate court, which, upon review of the proceedings in the trial court, merely affirms the final judgment — no error having been committed to the prejudice of the accused — without rendering a new judgment. The entire argument, on behalf of the appellant, assumes that the Supreme Court of Illinois pronounced a sentence of death upon him. But such is not the fact. The sentence of death, by hanging, was pronounced by the Criminal Court of Cook County, October 9th, 1886, “neither the said defendant nor his counsel for him saying anything further why the judgment of the court should not now be pronounced against him on the verdict of guilty heretofore rendered to the indictment in this cause." The execution of that sentence having been stayed by the prosecution of a writ of error, with supersedeas, the Supreme Court of the State, upon examination of the matters assigned for error, affirmed the judgment in all things, and (the day originally fixed for the execution having passed) fixed November 11th, 1887, as the day for carrying into execution “the sentence by the criminal court of Cook County.” What that court did was in strict conformity with the Criminal Code of Illinois relating to prosecutions by

Opinion of the Court.

indictment for capital offences, which provides that “if the judgment is affirmed, the Supreme Court shall, by order, fix the time when the original sentence of death shall be executed, a copy of which order shall be sufficient authority to the sheriff for the execution of the prisoner at the time therein specified ;” and that“ if the judgment is affirmed, the Supreme Court shall direct the court in which the original sentence was rendered to carry the same into effect, and shall give judgment against the plaintiff in error for costs, and execution may issue therefor from the Supreme Court." Rev. Stats. Illinois, c. 38, Crim. Code, SS 459, 465, Div. XV.

Numerous authorities have been cited for the appellant in support of the general common law rule that the accused must be present when the judgment against him is pronounced; but they fall far short of establishing the contention that due process of law required his personal presence in the Supreme Court of Illinois at the time the order was entered affirming: the judgment by which he was sentenced to death. No case is cited, and we are aware of no well-considered case, which supports that contention. The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defence, and cannot be dispensed with. This court in Hopt v. Utah, 110 U. S. 574, 579, after observing that the public has an interest in the life and liberty of the accused, and that neither can be lawfully taken except in the mode prescribed by law, said: “That which the law makes essential in proceedings involving deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offence committed, but the prevention of future offences of the same kind. 4 BI. Com. 11. Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a

Opinion of the Court.

prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution." See Harris v. People, 130 Illinois, 457, 459. But neither reason nor public policy require that he shall be personally present pending proceedings in an appellate court whose only function is to determine whether, in the transcript submitted to them, there appears any error of law to the prejudice of the accused; especially, where, as in this case, he had counsel to represent him in the court of review. We do not mean to say that the appellate court may not, under some circumstances, require his personal presence ; but only that his presence is not essential to its jurisdiction to proceed with the case.

In Fielden v. People, 128 Illinois, 595, 601, the Supreme Court of Illinois, speaking by Mr. Justice Schofield, after showing that the rule at common law, to which we have adverted, could have no application to that court, which acts and decides only upon the record made in the trial court, said: “We may add, moreover, it has not been the practice of this court, from its organization to the present time, to have the plaintiff in error in a criminal case actually present in court at the hearing and when final judgment is given; and it is clear, from the different provisions of the statute, that it not only does not provide for their presence, but it contemplates that they will not be present.”

In Donnelly v. State, 2 Dutcher (26 N. J. Law) 463, 471, which was a case of conviction of murder, - it was said: “If the presence of the prisoner is necessary in cases of murder to conduct a writ of error, or to receive the judgment of the court, it is, upon the principles of the English law, equally so in all other cases of felony or crimes above, misdemeanors. But upon examining the precedents, we do not find a single case, where, upon writ of error, the defendant was either brought into this court or prosecuted the writ in person.” After referring to several previous cases, the court proceeded:

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Opinion of the Court.

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“We think it must be considered as settled by the practice in this State, that in proceedings upon writ of error the personal presence of the prisoner in court is not a technical necessity; that he appears by counsel, errors are assigned by counsel, and judgment may be pronounced in the defendant's absence."

In State v. Overton, 77 Nor. Carolina, 485, which was, also, a case of murder, a judgment of conviction was affirmed by the Supreme Court of North Carolina, and the decision was certified to the court of original jurisdiction that the latter might proceed to judgment and execution. The prisoner objected to any judgment being rendered against him, because he had been denied his constitutional right of being present in the Supreme Court of North Carolina when his case was there argued and determined. The court said: “This objection is founded upon an erroneous idea of a criminal trial, and of the power and duty of this court in such a case brought before it by appeal. The constitution provides that a defendant in a criminal action shall be informed of the accusation against him, and shall have the right to confront the accusers and witnesses with other testimony, and shall not be convicted except by the unanimous verdict of a jury of good and lawful men in open court as heretofore used. That is his trial. This of course implies that he shall have a right to be present. If he complains of any error in his trial, the record of the trial is transmitted to this court. Here, are no “accusers,' no 'witnesses, and no “jury’; but upon inspection of the record this court decides whether there was error in the trial, and without rendering any judgment, orders its decision to be certified to the court below. It has never been understood, nor has it been the practice that the defendant shall be present in this court; nor is he ever convicted' here.” To the same effect are State v. Leah, 90 Nor. Carolina, 655; State V. Jacobs, 107 Nor. Carolina, 772. See also People v. Clark, i Parker's Criminal Rep. 360, 367.

We are of opinion that the practice prevailing in Illinois, New Jersey and North Carolina, as shown in the above cases, is that which is pursued, and has always been pursued, in the

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