tence.54 On the other hand, if the jury fail to agree upon the issue, although they agree upon defendant's guilt, and the verdict shows that they have failed to agree and so report to the court, and the court is satisfied that they cannot agree, or will not, then he should discharge the jury and retry the case before another jury.55 It is not error for the court to refuse to submit to the jury the question of suspending sentence where the only issue before it is an offense specifically excepted from the statute.56 Where defendant enters pleas of guilty to two felonies on the same day, he is not entitled to the benefit of the suspension of sentence statute.57 Necessity and time of filing application. Where the statute requires that defendant file an application before trial, in the absence of such application,58 or where the application was not filed before the trial,59 the court may refuse to submit the question to the jury,60 or may disregard such a recommendation made by the jury and enter judgment and sentence on their verdict of guilty,61 without requiring the consent of the jury to a correction of their verdict.62 Constitutionality of statute. A statute authorizing suspension of sentence on the recommendation of the jury is constitutional.63 But a statute which permits the court, after the lapse of a certain time, to set aside and annul the judgment of conviction is unconstitutional as interfering with the power 64 conferred on the governor to grant pardons,_ete. [§ 3046] (b) Evidence and Burden of Proof. Under a statute permitting defendant to submit to the jury the question of recommending a suspension of the sentence in the event that he shall be found guilty, but only where the proof shall show and the jury shall find that he has never before been convicted of a felony, the burden is upon accused to prove such fact.65 But under such a statute, on application of defendant for suspension of sentence, purely hearsay testimony as distinguished from general reputation or specific acts within the knowledge of the witness is not admissible." 66 In order to carry out the intent of the law the court should be liberal to the state in admitting testimony on the issue of recommending a suspension of the sentence.67 The filing of such a plea by defendant puts in issue his general reputation,6s which means such reputation as a peaceable, law-abiding man, 69 and any testimony bearing on that issue becomes admissible.70 Such evidence may be introduced at the time of proving the offense for which defendant is charged,"1 although if defendant withdraws his application for a suspension of the sentence the court should not permit such proof by the state." So where the question of suspending sentence is not submitted to. the jury it is error to permit the state to attack defendant's good character,7 54. Brown v. State, 75 Tex. Cr. 5, | pared at all, to offer proof on such 169 SW 897. 55. Mills v. State, 74 Tex. Cr. 137, 168 SW 88. 56. Rose v. State, (Tex. Cr.) 186 SW 202; Boyd v. State, 78 Tex. Cr. 28, 180 SW 230; Black v. State, 73 Tex. Cr. 475, 165 SW 571. 57. Weatherford v. State, 73 Tex. Cr. 440, 166 SW 149. 58. Speer v. State, 75 Tex. Cr. 348, 171 SW 201; Barnett v. State, 74 Tex. Cr. 619, 170 SW 143. 59. Bessett v. State, 77 Tex. Cr. 110. 180 SW 249; Muldrew v. State, 73 Tex. Cr. 463, 166 SW 156; Williamson v. State, 72 Tex. Cr. 618, 163 SW 435. 60. Muldrew v. State, 73 Tex. Cr. 463, 166 SW 156; Williamson v. State, 72 Tex. Cr. 618, 163 SW 435. 61. Bessett v. State, 78 Tex. Cr. 110, 180 SW 249; Speer v. State, 75 Tex. Cr. 348, 171 SW 201; Barnett v. State, 74 Tex. Cr. 619, 170 SW 143. 62. Bessett v. State, 78 Tex. Cr. 110, 180 SW 249 (holding that Code Cr. Proc. [1911] art 773, requiring the consent of the jury to the correction of their verdict, had no application to render improper the action of the court in entering up judgment and sentence on a verdict recommending suspension of sentence, where no plea therefor had been filed before trial and the judge had directed them not to make such recommendation). 63. Cook v. State, 73 Tex. Cr. 548, 165 SW 573; King v. State, 72 Tex. Cr. 394, 162 SW 890; Snodgrass v. State, 67 Tex. Cr. 615, 150 SW 162, 41 LRANS 1144. 64. Snodgrass v. State, 67 Tex. Cr. 615, 150 SW 162, 41 LRANS 1144. 65. Holland v. State, (Tex. Cr.) 187 SW 944. 66. Holland v. State, (Tex. Cr.) 187 SW 944. 67. Holland v. State, (Tex. Cr.) 187 SW 944. [a] Reason for rule.-"Practically in all records coming before this court where an accused has pleaded for a suspended sentence, such plea, as in this instance, is filed on the very eve of the trial. The state cannot, and does not, know that the accused will file such plea, and is therefore frequently ill prepared, if pre 73 72 [§ 3047] (c) Instructions. Where defendant proved that the keeper of the house was accused's wife. Neyland V. State, (Tex. Cr.) 187 SW 196. (5) Where accused, charged with violating the prohibition law, filed a plea for a suspended sentence, admission of a question asked one of his witnesses whether the witness knew that accused was running an assignation house was held not error. Conatser v. State, 75 Tex. Cr. 91, 170 SW 314. plea to disprove it. Hence it is more 69. Campbell v. State, 73 Tex. Cr. V. 70. Holland v. State, (Tex. Cr.) [b] Evidence inadmissible.—(1) In a prosecution for running a gambling house. evidence that defendant after his arrest was again seen at such house was inadmissible on a plea for suspended sentence. Caruth v. State, 77 Tex. Cr. 150, 153, 177 SW 973. (2) "As we understand, the reputation or standing of an accused who requests suspended sentence at the hands of the jury, is affected only by other transactions than that with which he stands charged. This whole matter about which this investigation was made and about which this testimony was introduced was the same club. The matter occurred subsequent to the time of his arrest. Such testimony, even if it was an independent matter and not connected with the original transaction, would hardly be such as the law contemplated, unless there was something derogatory to his standing as a citizen from the viewpoint of criminality. It would hardly be regarded as reflecting upon him because of the mere fact that he belonged to a club in which intoxicants were dispensed to its members in their own room. The evidence would have to go further and show, even if it was an independent trans [a] Evidence held admissible. (1) The state may introduce testimony as to defendant's bad reputation, his general conduct, specific instances of crimes, even minor misdemeanors, so that the jury may determine from all such testimony whether or not, in their discretion, a recommendation as to the suspension of sentence should be made. Holland v. State, (Tex Cr.) 187 SW 944. (2) Where accused prayed for a suspension of his sentence on the ground of previous good character and introduced evidence thereof, the state may show that accused had been prose-action, that he was violating some cuted for running a disorderly house and had turned state's evidence. Casey v. State, 78 Tex. Cr. 174, 180 SW 673. (3) The state on cross-examination of accused filing plea for suspension of sentence may show that he had been arrested for various crimes. Backus v. State, 77 Tex. Cr. 653, 179 SW 1166. (4) In a murder trial, testimony that accused had been residing in a house of prostitution is admissible as showing accused's habits on issue of suspended sentence asked by him, it having been law or doing something that reflected upon his character and standing which would authorize or justify the jury in finding against him on his suspended sentence plea or that the house had been used as a gambling house since appellant's arrest." CĂruth v. State, supra. 71. Holland v. State, (Tex. Cr.) 187 SW 944. 72. Holland v. State, (Tex. Cr.) 187 SW 944. 73. Boyd v. State, 78 Tex. Cr. 28, 180 SW 230. files an application for the suspension of sentence there is no necessity to charge that the filing of the plea creates no presumption of guilt unless the state so contends.74 [§ 3048] 2. Right to Pronounce Sentence after Suspension 75-a. In General. Where the right of the court to suspend sentence indefinitely during good behavior exists 76 and is exercised, the power remains in the court thereafter to revoke such an order and to pronounce sentence, even at a subsequent term, for the reason that a suspension of sentence is not considered a final judgment by which the case is put out of court, but is a mere suspension of active proceedings in the case.78 But even though such right exists, sentence cannot be pronounced after an indefinite suspension thereof if the effect would be to inflict a severer penalty than that which was permitted when the conviction was had. In a jurisdiction where the right of the court indefinitely to postpone sentence is not specifically recognized, it has been held that such an order, made upon request of defendant, did not deprive the court of power subsequently to revoke the order suspending sentence,80 for the reason that it was a mere order that sentence be suspended until further order of the court, and was made upon motion of defendant.81 79 83 an order indefinitely deferring the pronouncing of sentence, in the absence of statute conferring such right it has no power at a subsequent term to revoke such order and to pronounce sentence. In some jurisdictions, however, it is held that while such an order is void it does not prevent the court from imposing sentence at a subsequent term,84 especially where defendant does not object to the making of such an order.85 Where the practice prevails of suspending sentence for a definite period and requiring defendant to report from term to term, and to show good behavior, the court thereafter may revoke such order and impose the sentence.86 Where sentence is thereafter imposed on account of a subsequent violation of the law by defendant, the sentence is for the original offense and not for the subsequent conduct.87 But if defendant has shown good behavior for the period specified by the court and is discharged he cannot thereafter be sentenced.88 [3049] b. On Nonpayment of Costs. In those jurisdictions where the practice obtains of suspending sentence of fine or imprisonment upon the payment of the costs of the prosecution,89 the suspended sentence may be imposed at a subsequent term if the order is not complied with,90 even though defendant has been committed to jail for such default.91 Where, however, the court couples with such an order the doing of something which might have constituted a part of the sentence, the imposing of the condition is equivalent to a sentence, and deprives the court of power subsequently to pronounce another or a different sentence."2 Thus, where defend Where right to suspend sentence is denied. In those jurisdictions where the power of the court indefinitely to suspend the pronouncing of sentence is denied,82 the decisions are not uniform as to the power of the court to revoke such order and to pronounce sentence at a subsequent term. According to the weight of authority, after the court has made 74. Hughes v. State, 78 Tex. Cr. | Peo. v. Bork, 78 N. Y. 346 [dism writ | 806, 39 LRANS 242, AnnCas1914A 154, 180 SW 259. 75. Power of court to modify or correct judgment during term see infra §§ 3096, 3114. Right to enforce judgment after suspension of execution of sentence see infra § 3141. 76. See supra § 3041 et seq. See also infra § 3139 et seq. 77. Me. St. Hilaire's Pet., 101 Me. 522, 64 A 882, 8 AnnCas 385; Tuttle v. Lang, 100 Me. 123, 60 A 892. Mass.-Com. V. Dowdican, 115 Mass. 133. N. H.-State v. Drew, 75 N. H. 402, 74 A 875. V. Osborne, 79 N. J.-Gehrmann N. J. Eq. 430, 82 A 424. N. Y.-Peo. v. Monroe County Ct. of Sess., 141 N. Y. 288, 36 NE 386, 23 LRA 856; Peo. v. Graves, 31 Hun 382, 2 N. Y. Cr. 123; Peo. v. Webster, 14 Misc. 617, 36 NYS 745 [aff 1 App. Div. 631 mem, 37 NYS 1148 mem]; Peo. v. Goodrich, 149 NYS 406. Pa.-Com. V. Dunleavy, 16 Pa. Super. 380. Wash.-State V. Mallahan, 65 Wash. 287, 118 P 42 (holding that a suspension of sentence granted under L. [1905] c 24 § 1, authorizing the suspension of sentence during good behavior of accused, which requires accused to report weekly to an officer and monthly to the court, sufficiently complies with the statute and is not a final discharge of accused). See Rex v. Spratling, [1911] 11 T B. 77 (holding that courts of quarter sessions have always had, as part of their inherent jurisdiction, power to order a convicted person to be bound over to come up for judgment when called upon). [a] Пlustration.-Where defendant is again arrested and brought before the same court, charged with another crime, the suspended sentence may be imposed at such time. Peo. v. Graves, 31 Hun (N. Y.) 382. of error 16 Hun 4761, 83 N. Y. 609 139. 80. Peo. v. Patrick, 118 Cal. 332, 50 P 425. 81. Peo. v. Patrick, 118 Cal. 332, 82. See supra § 3041 et seq. Colo.-Grundel v. Peo., 33 Colo. 191, Hawaii.-Hawaii v. Pedro, 11 Hawaii 287. Il-Peo. v. Barrett, 202 III. 287, 67 NE 23, 95 AmSR 230, 63 LRA 82; Peo. v. Allen, 155 Ill. 61, 39 NE 568, 41 LRA 473. Kan.-State v. Sapp, 87 Kan. 740, 125 P 78, 42 LRANS 249. Mo.-State v. Jacobs, (A.) 108 SW Utah. In re Flint, 25 Utah 338, 71 [a] Reason for this view.-"In Modifying, changing, and revising sentence generally see infra § 3096 et seq. 84. Ragland v. State, 55 Fla. 157, 46 S 724; Hancock v. Rogers, 140 Ga. 688, 79 SE 558; Hoggett v. State, 101 Miss. 269, 57 S 8:1 [overr 57 S 9]; 133; Fuller v. State, 100 Miss. 811, 57 S 78. St. Hilaire's Pet., 101 Me. 522, 64 A $82, 8 AnnCas 385: Com. v. Dowdican, 115 Mass. 98. 85. Hoggett v. State, 101 Miss. 269, 57 S 811, 57 S 9. 86. State v. Johnson, 169 N. C. 311, 84 SE 767; State v. Everitt, 164 N. C. 399, 79 SE 274, 47 LRANS 848. 87. State V. Everitt, 164 N. C. 399, 79 SE 274, 47 LRANS 848. See also Philpot v. State, 65 N. H. 250, 20 A 955 (where defendant pleaded nolo contendere and sentence was suspended on condition that he quit the illegal business of selling liquor with which he was charged, and on violation of the condition he was subsequently fined and imprisoned, and the court said: "The jurisdiction of the police court was no more affected by the release of the respondent from custody, than it would have been by his escape. The fine and imprisonment imposed by that court are not a punishment for non-performance of a condition, but the penalty prescribed by Gen. Laws c 109, s 14, for the offence of being a common seller"). 88. State v. Hilton, 151 N. C. 687, 65 SE 1011. 89. See supra § 3042. 90. Fla. Ex p. Williams, 26 Fla. 310. 8 S 425. Miss.-Gibson 241, 8 S 329. v. State, 68 Miss. N. J.-State v. Clifford, 84 N. J. L. 595, 87 A 97; State v. Addy, 43 N. J. L. 113, 39 AmR 547. N. C.-State v. Whitt, 117 N. C. 804, 23 SE 452; State v. Crook, 115 N. C. 760, 20 SE 513, 29 LRA 260. Pa.-Com. v. Hamel, 44 Pa. Super. 464; Com. v. Dunleavy, 16 Pa. Super. 380. 91. State v. Crook, 115 N. C. 760, 20 SE 513. 29 LRA 260. 92. Gibson v. State, 68 Miss. 241, & S 329; State v. Clifford, 84 N. J. L. 595, 87 A 97; State v. Addy, 43 N. J. L. 113, 39 AmR 547; State v. Hilton, 151 N. C. 687, 65 SE 1011; State v. Crook, 115 N. C. 760, 20 SE 513, 29 LRA 260; State v. Hatley, 110 N. C. 522, 14 SE 751. [a] Reason for rule.-"It is con ant has paid the costs, has complied with the condition imposed, and is discharged, the power of the court over defendant is exhausted and a subsequent sentence for the same offense is void.93 However, the payment of costs by one against whom sentence has been suspended on condition that he pay the costs and satisfy the court of his good behavior is not such performance of the conditions as to deprive the court of power thereafter to impose sentence upon ascertaining that defendant is again violating the law.94 be set aside and sentence can be imposed only on final judgment of conviction in another case,97 and therefore, where an appeal is pending, the court has no power to do so.98 Violation of parole. Where the court extends the period of probation of defendant, as it has a right to do, and defendant violates the conditions thereof within the period designated in the extension, the court may thereupon revoke the order of probation and pronounce sentence.99 [§ 3051] E. Formalities in Pronouncing Sen[§ 3050] c. c. Statutory Provisions. The power tence-1. Presence of Defendant1-a. When Corof a court to revoke an order suspending or with- poral Punishment Inflicted-(1) In General. The holding sentence and to impose and enforce a sen- authorities are practically uniform in holding that, tence is in some jurisdictions expressly authorized where corporal punishment however slight is to be by statute.95 Under some statutes the power of the inflicted, defendant must be present in court when court to impose a suspended sentence is limited to the sentence is pronounced, in the absence of any any time thereafter within the longest period for statute to the contrary. However, it is not error which defendant might have been sentenced.96 for the court to set the day for pronouncing the Under other statutes a suspension of sentence can sentence in the absence of defendant. It is only ceded that when the Court couples bation officer was justified in sur- 55 NW 566, 39 AmSR 855, 21 LRA with the payment of the costs any rendering him, and whether sentence 402. judgment that might have constitut- should be imposed. Com, v. McGoved a part of a sentence, as that a ern, 183 Mass. 238, 66 NE 805. public nuisance be abated, in case of conviction for creating it, the power of the Court is exhausted in its rendition, and the suspension of judgment is deemed to have been ordered on condition of the performance of such requirement." State v. Crook, 115 N. C. 760, 20 SE 513, 29 LRA 260. 93. State v. Addy, 43 N. J. L. 113, 39 AmR 547; State v. Hilton, 151 N. C. 687, 693, 65 SE 1011. 96. Ex p._Slattery, 163 Cal. 176, 124 P 856; Peo. v. Flynn, 55 Misc. 639, 106 NYS 925. 97. Ex p. Lawson, 76 Tex. Cr. 419, 175 SW 698. 98. Ex p. Lawson, 76 Tex. Cr. 419, 175 SW 698. 99. Ex p. Sizelove, 158 Cal. 493, 111 P 527. 1. Presence at trial generally see supra § 2066 et seq. 2. U. S.-Ball v. U. S., 140 U. S. 118, 11 SCt 761, 35 L. ed. 377; Ex p. Waterman, 33 Fed. 29. Ala.-Graham v. State, 40 Ala. 659; Gibson v. State, 39 Ala. 693; Eliza v. State, 39 Ala. 693; Peters v. State, 39 Ala. 681; Young v. State, 39 Ala. 357. Fla.-Brown v. State, 29 Fla. 543, 10 S 736. "While the power to suspend judgment is allowed with us, there are well-recognized restrictions upon its exercise, and no well-considered decision, here or elsewhere, will uphold the principle that sentence may be pronounced after an indefinite suspension of judgment, when every condition attached to it has been Ark. Cole v. State, 10 Ark. 318. complied with, the fine and costs paid, the defendant discharged, by order of court, and the cause removed from the docket. To allow a defendant, under such circumstances, to be imprisoned by the court would afford opportunity for a capricious exercise of arbitrary power unknown to the common law and disapproved 166. and condemned by many well-con- Mich. Matter of Fowler, 49 Mich. sidered decisions of the present 234, 13 NW 530 (holding that a pertime." State v. Hilton, supra. [a] Abatement of nuisance. Where the court couples with the order for costs an order that a nuisance be abated, it cannot at a subsequent term proceed to inflict the remainder of what it might have imposed originally by its sentence. If defendant complies with such condition and is discharged, the exaction will be regarded as a sentence, and the power of the court over defendant is exhausted. State v. Addy, 43 N. J. L. 113, 39 AmR 547. 94. State v. Everitt, 164 N. C. 399, 79 SE 274, 47 LRANS 848. 95. Ex p. Slattery, 163 Cal. 176, 124 P 856; In re Collins, 8 Cal. A. 367, 97 P 188; Peo. v. Heise, 257 Ill. 443, 100 NE 1000. Ill.-Harris v. Peo., 130 Ill. 457, 22 NE 826; Fielden v. Peo., 128 Ill. 595, 21 NE 584; Gannon v. Peo., 127 Ill. 507, 21 NE 525, 11 AmSR 147; Brooks v. Peo., 88 Ill. 327. Ind. Sturgeon v. Gray, 96 Ind. son convicted of disorderly conduct Miss. Rolls v. State, 52 Miss. 391; Nebr.-Dodge v. Peo., 4 Nebr. 220. N. Y.-Dent v. Peo., 46 HowPr 264; Ct. N. S. 539. Pa.-Jewell v. Com., 22 Pa. 94; Philippine.-U. S. v. Karelsen, 3 Oh.-Carper v. State, 27 Oh. St. [a] In Massachusetts, where de-572; Leiblang v. State, 21 Oh. Cir. fendant was released on parole, as authorized by statute, and was subsequently surrendered into court by the probation officer, it was held that, although the course of the probation officer in not furnishing defendant with a written statement of the terms of his release, and in surrendering him without having made an independent investigation himself, was not to be commended, yet, under the direct provisions of Rev. L. c 220 § 2, when defendant was surrendered it was for the court to determine whether he had violated the terms of his recognizance, whether the pro- Wis.-French v. State, 85 Wis. 400, S. D.-State, v. Pearse, 19 S. D. 75, 102 NW 222. Tenn.-Andrews v. State, 2 Sneed 550; State v. Jones, 2 Yerg. 22. W. Va.-State v. Dolan, 58 W. Va. 263, 52 SE 181, 6 AnnCas 450; State v. Campbell, 42 W. Va. 246, 24 SE 875. Eng.-Rex v. Constable, 3 B. & Ad 659 note, 23 ECL 291, 110 Reprint 241; Rex v. Boltz, 5 B. & C. 334, 11 ECL 486, 108 Reprint 125; Rex v. Hann, 3 Burr. 1786, 97 Reprint 1099; Rex v. Harris, Holt K. B. 399, 90 Reprint 1119, 1 Ld. Raym. 267, 91 Reprint 1075, 12 Mod. 156, 88 Reprint 1232, 1 Salk. 400, 91 Reprint 346, Skin. 684, 90 Reprint 304; Anonymous, Lofft 400, 98 Reprint 715; Reg. v. Templeman, 1 Salk. 55, 91 Reprint 54; 1 Chitty Cr. L. p 695; 2 Hawkins P. C. c 48, § 17. And see Reg. v. Chichester, 2 Den. C. C. 458, 8 Eng L&Eq 294 (holding that the judgment to abate a nuisance may be rendered only when defendant is present). [a] The reasons for the rule are that defendant may be identified by the court as the real party adjudged guilty; that he may have a chance to plead a pardon or to move in arrest of judgment; that he may have an opportunity to say why judgment should not be given against him; and that the example of being brought up for the animadversion of the court and the open denunciation of punishment may tend to deter others from the commission of similar offenses. Fielden v. Peo., 128 Ill. 595, 21 NE 584 [cit Ball v. U. S., 140 U. S. 118, 11 SCt 761, 35 L. ed. 377; Rex v. Harris, Holt K. B. 399, 90 Reprint 1119, 1 Ld. Raym. 267, 91 Reprint 1075, 12 Mod. 156, 88 Reprint 1232, 1 Salk. 400, 91 Reprint 346, Skin. 684, 90 Reprint 304; Rex v. Speke, 3 Salk 358, 91 Reprint 872]. 'In [b] "The physical presence of the prisoner is the indubitable prerequisite of jurisdiction; and without such presence, jurisdiction to render judg ment and pass sentence does not exist. On this point a writer of acknowledged authority observes: cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment If he be absent, either in prison or by escape, there is a want of jurisdiction over the person, and the court can not proceed with the trial, or receive the verdict, or pronounce the final judgment.'" State v. MeClain, 156 Mo. 99, 56 SW 731 [quot Cooley Const. Lim. (6th ed) p 388]. [c] In Nova Scotia an adjudication of imprisonment made against a prisoner in his absence by a county court judge on appeal was held valid, where defendant and his counsel were present at the time the judgment was affirmed, and, the court indicating its willingness to reduce the penalty, it was agreed, on necessary for defendant personally to be present when judgment is pronounced.3 Presence of defendant's attorney. The fact that defendant's attorney was not present when sentence was pronounced, notice of the time having been given to him, in the absence of a showing that defendant was prejudiced thereby, is not ground for objection.1 When codefendant sentenced. Since the judgment against persons jointly accused of crime should be rendered against them severally and not jointly,5 the absence of a codefendant does not prevent the pronouncing of sentence on defendant who is present." Statutory provisions. In some jurisdictions the rule requiring the presence of defendant when a sentence imposing corporal punishment is pronounced has been established by statute.' But under the statutes in some of the states sentence, in the case of a person convicted of a misdemeanor, may be rendered in the absence of defendant.8 A statute providing that defendant must be present for purpose of judgment, "if the conviction be for an offense punishable by imprisonment," applies only where defendant is found guilty and in case of an acquittal his presence is not necessary." (1) In General. When a fine only is to be imposed, it is discretionary with the court to require the presence of defendant when sentence is rendered.11 [$ 3054] (2) Imprisonment Until Fine Is Paid. A sentence which directs defendant to pay a fine, and commits him to jail until such fine is paid, inflicts corporal punishment, and cannot be pronounced in defendant's absence.12 However, where imprisonment is no part of the punishment, but is only a mode of enforcing payment of the fine imposed, it has been held that defendant need not be present at the imposition of the fine or punishment.13 The fact that the court has discretion to impose either fine or imprisonment, or both, does not make it necessary for defendant to be present, if the court, in the exercise of its discretion, imposes only a fine.14 [§ 3055] c. Waiver of Right to Be Present. It would seem that a person convicted of felony cannot waive his right to be present in court at the time that sentence is pronounced,15 and that it is error to render sentence in his absence, although such absence is voluntary or willful.16 However, in a case where defendant was convicted of a misdemeanor, it was held that, on affidavit of age and infirmity, the court might dispense with his personal attendance at the time of sentence.17 Under a statute which by implication requires defendant's presence only in case of conviction, the voluntary absence of defendant at the time that the jury are ready to return their verdict does not deprive him of his right to have a judgment of acquittal entered on a statute it was necessary for defend- | 1232, 1 Salk. 400, 91 Reprint 346, ant to be present in all cases where Skin. 684, 90 Reprint 304]. corporal punishment was inflicted. Com. v. Crump, 1 Va, Cas. (3 Va.) 3052] (2) Effect of Pronouncing Sentence When Defendant Is Absent. Pronouncing sentence while defendant is absent from court will not entitle him to a new trial or to be discharged, but in such case the appellate court will remand the cause with directions to render judgment according to law.10 172. 9. State v. Main, 66 Wash. 381, 385, 119 P 844. [ý 3053] b. When Fine Only Is to Be Paidrequest of defendant's counsel for delay, that sentence should be imposed that evening at the hotel where the judge was staying. Johnston v. Robertson, 42 N. S. 84. Contra Rex v. Johnston, 41 N. S. 105, 108 (where the court said: "I am of the opinion that the adjudication of imprisonment, having been made in the absence of the prisoner, he must be discharged. It appears that, by the law of England, the rule is that punishment by imprisonment cannot be imposed by sentence in the absence of the prisoner"). [d] Prosecutor refusing to bring up prisoner for judgment.-Where a defendant convicted upon an indictment for publishing a libel was committed to prison at the instance of the prosecutor, who would not afterward bring him up for judgment, the court said that it could not compel a prosecutor to be at the expense of bringing a defendant in custody up to receive judgment for a misdemeanor; but, if defendant was too poor to come up at his own expense, the court would at his request pass judgment in his absence. Rex V. Boltz, 5 B. & C. 334, 11 ECL 486, 108 Reprint 125. 3. Peo. v. Galvin, 9 Cal. 115. 4. Miller v. State, (Tex. Cr.) 44 SW 162. 5. See supra § 3024. 6. Sturgeon v. Gray, 96 Ind. 166; State v. Bradley, 30 La. Ann. 326. 7. Cal-Peo. v. Walker, 132 Cal. 137, 64 P 133; Peo. v. Sprague, 54 Cal. 92. Ind. Sturgeon V. Gray, 96 Ind. 166. Mo.-State v. McClain, 156 Mo. 99, 56 SW 731. Tex.-Cain v. State, 15 Tex. A. 41. Wash.-State v. Main, 66 Wash. 381, 119 P 844. 8. Hughes v. State, 4 Iowa 554. [a] In Virginia (1) the rule stated in the text now prevails by virtue of a statute. Shiflett v. Com., 90 Va. 386, 18 SE 838; Price v. Com., 33 Gratt. (74 Va.) 819, 36 AmR 797. (2) Prior to the enactment of the 10. Ark. Cole v. State, 10 Ark. Il-Harris v. Peo., 130 Ill. 457, 22 Mo.-State v. McClain, 156 Mo. 99, N. C.-State v. Cherry, 154 N. C. Pa.-Jewell v. Com., 22 Pa. 94. 610. Ky.-Com. v. Cheek, 1 Duv. 26; N. Y.-Blythe v. Tompkins, 2 Abb 572. St. Porto Rico.-Peo, v. Colon, 14 Porto Rico 80 (holding that, where defendant was convicted of a misdemeanor and fined, it was not necessary that he be present when sentence was pronounced). Tenn.-State v. Jones, 2 Yerg. 22. W. Va.-State v. Campbell, 42 W. Eng.-Rex v. Hann, 3 Burr. 1786, [a] The true reason why at common law a fine might be imposed in the absence of the prisoner, and a judgment that he be put in the pillory or in prison could not be rendered, was that a regular process to collect the fine existed, but there was no process to take a man who was at large and put him in the pillory. Son v. Peo., 12 Wend. (N. Y.) 344 [cit Rex v. Harris, Holt K. B. 399, 90 Reprint 1119, 1 Ld. Raym. 267, 91 Reprint 1075, 12 Mod. 156, 88 Reprint [b] Desirability of presence when fine only imposed.-Even if a fine is to be imposed, where the case is of a gross nature, defendant should appear in person for the sake of example and to prevent like offenses being committed by others, as the notoriety of their being called up to answer criminally would very much conduce to deter others from venturing to commit similar offenses. Rex v. Hann, 3 Burr. 1786, 97 Reprint 1099. 12. Grimm v. Reinbold, 3 Pa. Dist. 668, 13 Pa. Co. 545. See also Cole v. State, 10 Ark. 318, 325 (where the court said: "Corporal punishment seems to mean any kind of corporal privation or suffering, which is inflicted by sentence directly by way of penalty for the offence, and consequently includes imprisonment as well as the pillory.. It is in contradistinction to fine and the power of sentencing in absence seems to be confined to cases of fine exclusively"). 13. Son v. Peo., 12 Wend. (N. Y.) 344; Com. v. Thompson, 18 Pa. Co. 487. 14. Peo. v. Taylor, 3 Den. (N. Y.) 91; Peo. v. Clark, 1 Park. Cr. (N. Y.) 360; Cain v. State, 15 Tex. A. 41; Com. v. Crump, 1 Va. Cas. (3 Va.) 172; Reg. V. Kinglake, 18 Wkly. Rep. 805. 15. Dodge v. Peo., 4 Nebr. 220; Prine v. Com., 18 Pa. 103; Reg. v. Williams, 18 Wkly. Rep. 806. 16. Harris v. Peo., 138 Ill. 63, 27 NE 706; Dodge v. Peo., 4 Nebr. 220, Prine v. Com., 18 Pa. 103; Reg. v. Williams, 18 Wkly. Rep. 806. But compare Lynch v. Com., 88 Pa. 189, 32 AmR 445 (holding that, where a trial for larceny is put on the same footing as trials for misdemeanors, a defendant who voluntarily absents himself may be sentenced in his absence). 17. Rex v. Constable, 3 B. & Ad. 659 note, 23 ECL 291, 110 Reprint 241. verdict of not guilty after its rendition and publication.18 In criminal contempt proceedings. Where defendant is convicted of an actual criminal contempt, he may be sentenced in his absence without a waiver and without his consent.19 [ 3056] 2. Presence of Prosecuting Attorney. An associate counsel who has appeared with the consent of the prosecuting attorney and has been recognized by the court in a prosecution for a felony may, in the absence of the prosecutor, pray judgment and sentence after conviction of defendant.20 [§ 3057] 3. Informing Defendant of Proceedings. By statute in many states it is necessary, beore sentence is pronounced, for the court or the clerk to inform defendant of the nature of the charge against him, of his plea, and of the verdict of the jury.21 Such a statute is mandatory,22 and a judgment rendered without observing the requirement is irregular and voidable,28 even though defendant was asked if he had anything to say why judgment should not be pronounced.24 Thus, where the court fails to notify the defendant of the verdict before pronouncing sentence as required by statute, the judgment will be set aside and the cause remanded to the court below to render judgment on the verdict in the manner prescribed by law.25 Where, however, defendant files a motion in arrest of judgment, it warrants a presumption that he knew the nature of the crime of which he was charged,26 and an erroneous statement by the court of the crime charged in the information is not prejudicial. In some jurisdictions it is not necessary that defendant be informed of the verdict of the jury where the offense of which he is convicted is a misdemeanor.28 Informing defendant of right to appeal. In some jurisdictions the statutes require defendant to be informed of his right to appeal from the judgment of the court,29 but a failure so to do does not deprive defendant of his right to appeal,30 nor does it render the judgment of conviction void.31 [3058] 4. Showing Cause Why Sentence Should Not Be Pronounced-a. Asking If Prisoner Has Anything to Say; Allocutus (1) In General. The demand or inquiry by the court or by the clerk whether the prisoner has anything to say why sentence should not be pronounced on him is termed the allocutus" or "allocution," 32 and its purpose is to give to defendant an opportunity to allege any ground of arrest, or to plead a pardon, if he has obtained one, or to urge any other legal objection to further proceedings against him.33 [§ 3059] (2) Necessity-(a) In Felonies-aa. In General. At common law it is essential, in capital cases, that inquiry be made of defendant before judgment is passed, whether he has anything to say why sentence should not be pronounced against him.34 On the other hand, there is considerable authority to the effect that the omission of the allocutus is not fatal error even in capital cases,35 on the ground that the reasons for its existence are not applicable at the present day.36 However, some of 18. State v. Main, 66 Wash. 381, 33. Schwab v. Berggren, 143 U. 119 P 844. S. 442, 12 SCt 525, 36 L. ed. 218; Peo. v. Walker, 132 Cal. 137, 64 P 133; Terr. v. Herrera, 11 N. M. 129, 66 P 523; McCue v. Com., 78 Pa. 185, 21 AmR 7. 19. Ex p. Terry, 128 U. S. 289, 9 SCt 77, 32 L. ed. 405; Merchants' Stock, etc., Co. v. Chicago Bd. of Trade, 201 Fed. 20, 120 CCA 582; Middlebrook v. State, 43 Conn. 257, 21 AmR 650. But see Strother V. State, 1 Mo. 772 (where a fine was imposed on an attorney, and the record failed to show that he was present at the time, and the cause was reversed). 20. State v. Conly, 130 N. C. 683, 41 SE 534. 21. Peo. v. Johnson, 88 Cal. 171, 25 P 1116; Peo. v. Jung Qung Sing, 70 Cal. 469, 11 P 755; McCormick v. State, 66 Nebr. 337, 92 NW 606; Dodge v. Peo., 4 Nebr. 220; Bartlett v. State, 28 Oh. St. 669; Carper v. State, 27 Oh. St. 572; Bond v. State, 23 Oh. St. 349; Rhea v. U. S., 6. Okl. 249, 50 P 992. 22. Peo. v. Walker, 132 Cal. 137, 64 P 133; McCormick v. State, 66 Nebr. 337, 92 NW 606. 23. Peo. v. Walker, 132 Cal. 137, 64 P 133; Peo. v. Jung Qung Sing, 70 Cal. 469, 11 P 755; McCormick State, 66 Nebr. 337, 92 NW 606; Rhea v. U. S., 6 Okl. 249, 50 P 992. V. 24. McCormick v. State, 66 Nebr. 337, 92 NW 606; Rhea v. U. S., 6 Okl. 249, 50 P 992. And see infra § 3058. 25. McCormick v. State, 66 Nebr. 337, 92 NW 606; Dodge v. Peo., 4 Nebr. 220. 26. Peo. v. Johnson, 71 Cal. 384, 12 P 261. 28. State v. Lund, 51 Kan, 1, 32 P 657. 29. Jacoby v. Waddell, 61 Iowa 247, 16 NW 119. 30. Jacoby v. Waddell, 61 Iowa 247, 16 NW 119. 31. Jacoby v. Waddell, 61 Iowa 247, 16 NW 119. 32. Lillard v. State, 151 Ind. 322, 50 NE 383; State v. Ross, 32 La. Ann. 854 (holding that the clerk may properly propound the query to the prisoner); Rapalje & L. L. D. Arrest of judgment see supra § 2781. Insanity after conviction see supra § 3035 et seq., 3211. Mitigation of punishment see infra § 3065 et seq. Plea of nonidentity see infra § 3069. Plea of pardon see infra § 3068. 34. U. S.-Schwab v. Berggren, 143 U. S. 442, 12 SCt 525, 36 L. ed. 218 (holding that the rule of common law in capital cases, requiring that inquiry be made of defendant before judgment is passed, whether he has anything to say, etc., applies only to the trial court, and is not to an appellate court which merely affirms the final judgment); Ball v. U. S., 140 U. S. 118, 11 SCt 761, 35 L. ed 377. Fla.-Keech v. State, 15 Fla. 591. 642. La.-State v. Ikenor, 107 La. 480, 32 S 74; State v. Ross, 32 La. Ann. 854. Miss.-Edwards v. State, 47 Miss. 581: James v. State, 45 Miss. 572. Mo.-State v. Ball, 27 Mo. 324. N. M.-U. S. v. Sena, 15 N. M. 187, 106 P 383; Terr. v. Herrera, 11 N. M. 129, 66 P 523 [overr Terr. v. Webb, 2 N. M. 147]. N. Y.-Messner v. Peo., 45 N. Y. 1; Graham v. Peo., 63 Barb. 468; Dent v. Peo., 46 HowPr 264. 55. N. C.-State v. Johnson, 67 N. C. Or. State v. Sally, 41 Or. 366, 70 P 396. Pa. Rizzolo v. Com., 126 Pa. 54, 17 A 520; McCue v. Com., 78 Pa. 185, 21 AmR 7; Dougherty v. Com., 69 Pa. 286; Hamilton v. Com., 16 Pa. 129, 55 AmD 485. S. C.-State v. Jefcoat, 20 S. C. 383; State v. Trezevant, 20 9. C. 363, 47 AmR 840. Eng.-Rex v. Speke, 3 Salk. 358, 91 Reprint 872; Rex v. Geary, 2 Salk. 630, 91 Reprint 532; 1 Chitty Cr. L. p 700. [a] Proclamation of silence.—(1) Before the sentence of death was passed it was once customary for the crier to make proclamation of silence. White's Trial, 17 How. St. Tr. 1079. (2) But this practice need not be observed. Rex v. Ward, 2 Ld. Raym. 1461, 92 Reprint 451. 35. Conn.-State v. Hoyt, 47 Conn. 518, 36 AmR 89. Ga.-Sarah v. State, 28 Ga. 576. But see Grady v. State, 11 Ga. 253 (where the dictum of the court was to the effect that allocution was necessary in capital cases). Ill. Gannon v. Peo., 127 III. 507, 21 NE 525, 11 AmSR_147. Md.-Dutton v. State, 123 Md. 373, 91 A 417, AnnCas1916C 89. N. J.-Warner v. State, 56 N. J. L. 686, 29 A 505, 44 AmSR 415. N. M. Terr. v. Webb, 2 N. M. 147. 36. Conn.-State v. Hoyt, 47 Conn. 518, 36 AmR 89. Ga. Sarah v. State, 28 Ga. 576. Ill. Gannon v. Peo., 127 II. 507, 21 NE 525, 11 AmSR 147. Md.-Dutton v. State, 123 Md. 373, 91 A 417, AnnCas1916C 89. Mich. Peo. v. Palmer, 105 Mich. 568, 63 NW 656. N. J.-Warner v. State, 56 N. J. L. 686, 29 A 505, 44 AmSR 415. [al For example (1) since at the present day parties charged with crime are always allowed to have counsel, the reason for the inquiry of the prisoner whether he has anything to say why sentence should not be pronounced does not exist. The allocutus is therefore now a mere idle ceremony, and the law requiring it should cease with the reason. State v. Hoyt, 47 Conn. 518, 36 AmR 89. (2) The contention that defendant is enabled by the observance of the ceremony to lay before the court certain statements which may have the effect of mitigating his punishment is not applicable under the Illinois statute, for the extent of |