People v. Winchell — 7 Cow. 525

Majority

p. 524

*The People against Winchell.^[1]

ALBANY,

Oct. 1827.

Headnote

The supreme court will not render judgment against a defendant in a ease ofperjury, though convicted on the civil sido at the circuit, unless he be present in court at the time of judgment.

Sentence of the slightest corporal punishment can not be given in absentia. See note ca~ at the end of this case.

What is corporal punishment. It includes imprisonment. Semi, sentence in absentia can be given only of a fine. id.

The defendant having been indicted in the Oneida general sessions, for perjury, removed the cause into this court by certiorari; so that it stood on the civil side, and was tried at the circuit. The defendant being convicted, the district attorney moved for a capzas against him, he being out on bail. On the 17th of October, the district attorney filed the n'isi prius record, with the postea, &c. The defendant had not been arrested on the capias, nor did he now appear. But,

Talcott, (attorney general,)

moved for judgment in his absence, suggesting that his presence w~s not necessary.

however, refused to render judgment.

Motion denied.^[1]

(a) (a) The rule seems to be well settled, that sentence of corporal punishment cannot be given against a convict without his actual presence. (Lofft, 400.) This has been directly held in respect to punishment by the pillory, for perjuiy; on which occasion the rule will be found stated as above in respect to all corporal punishment. (Ld. Raym. 267. 1 Salk. 400. Skin. 684.) Corporal punishment seems to mean any hind of corporal privation or suffering which is inflicted by the sentence, directly by way of penalty for the offence; and in this sense, of course, includes imprisonment, (vide 1 Chit Cr. L. 709 , 712,) as well as of the pillory. It is set in contradistinction to afine; (1 Salk. 56; Lofft, 400;) which latter may, in the discretion of the court, be awarded in the absence of the defendant. (Vide 1 Chit. Cr. L. 695 .) On the other hand, where a man was convicted upon an indictment at common law, of decoying sailors on board a ship, though the offence was extremely light of its kind, and the crown inclined to mercy, and it was agreed, on all hands, that the most trifling corporal punishment should be imposed, the court said they could not impose it in ahsentem. At last, by the consent of the attorney general, upon warrant, they set a fine of Is. (Lofft, 400.) Thus, the power of sentencing in absence seems confined to the case of fine exclusively