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errors of judgment. That the trustees of such corpo- rigid a rule and rendering them liable for slight negrations are bound to use some diligence in the dis- lect; while to require less would be relaxing too much charge of their duties cannot be disputed. All the the obligation which binds them to vigilance and attenauthorities hold so. What degree of care and dili- tion in regard to the interests of those confided to their gence are they bound to exercise ? Not the highest care, and expose them to liability for gross neglect degree; not such as a very vigilant or extremely care- only, which is very little short of fraud itself." ful person would exercise. If such were required, it In Spering's Appeal, 71 Penn. St. 11, Judge Sharswould be difficult to find trustees who would incur the wood said: “They (directors) can only be regarded as respousibility of such trust positions. It would not be mandataries — persons who have gratuitously underproper to answer the question by saying the lowest de- taken to perform certain duties, and who are therefore gree. Few persons would be willing to deposit money bound to apply ordinary skill and diligence, but no in savings banks or to take stock in corporations, with

more." the understanding that the trustees or directors were In Hodges v. New England Screw Co., 1 R. I. 312, bound only to exercise slight care, such as inattentive Jencks, J., said: “The sole question is whether the persons would give to their own business, in the man- directors have or have not bestowed proper diligence. agement of the large and important interests commit- | They are liable only for ordinary care — such care as ted to their hands. When one deposits money in a prudent men take in their own affairs." And the savings bank, or takes stock in a corporation, thus same case, Ames J., said: “They should not, theredivesting himself of the immediate control of his fore, be liable for innocent mistakes, unintentional property, he expects, and has the right to expect, that negligence, honest errors of judgment, but only for the trustees or directors who are chosen to take his willful fraud or neglect, and want of ordinary knowlplace in the management and control of his property edge and care.” The same caso came again under conwill exercise ordinary care and prudence in the trusts sideration in 3 R. I. 9, and Green, C. J., said: “We committed to them - the same degree of care and pru- think a board of directors, acting in good faith and dence that men prompted by self-interest generally with reasonable care and diligence, who nevertheless exercise in their own affairs. When one voluntarily fall into a mistake, either as to law or fact, are not takes the position of trustee or director of a corpora- liable for the consequences of such mistake." tion, good faith, exact justice and public policy unite In the case of Liquidators of the Western Bank v. in requiring of him such degree of care and prudence, Douglas, 11 Session Cas. (3d series) 112, Scotch, it is and it is a gross breach of duty, crassa negligentia, not said: “Whatever the duties (of directors) are, they to bestow them.

must be discharged with fidelity and conscience, and It is impossible to give the measure of culpable neg- with ordinary and reasonable care. It is not necessary ligence for all cases, as the degree of care required de- that I should attempt to define where excusable repends upon the subjects to which it is to be applied. missness ends and gross negligence begins. That must First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. depend to a large extent on the circumstances. It is What would be slight neglect in the care of a quantity enough to say that gross negligence in the performance of iron might be gross neglect in the care of a jewel. of such a duty, the want of reasonable and ordinary What would be slight neglect in the care exercised in fidelity and care, will impose liability for loss thereby the affairs of a turnpike corporation, or even of a

occasioned." manufacturing corporation, might be gross neglect in In Charitable Corporation v. Sutton, 2 Atk. 405, Lord the care exercised in the management of a savings Chancellor Ilardwicke said that a person who acccepted bank intrusted with savings of a multitude of poor the office of director of a corporation “is obliged to people, depending for its life upon credit, and liable to execute it with fidelity and reasonable diligence," be wrecked by the breath of suspicion. There is a although he acts without compensation. classification of negligence to be found in the books — In Litchfield v. While, 3 Sandf. 515, Sandford, J., not always of practical value, and yet sometimes service- said: “In general, a trustee is bound to manage and able - into slight negligence, gross negligence, and that employ the trust property for the benefit of the cestui degree of negligence intermediate the two, attributed que trust with the care and diligence of a provident to the absence of ordinary care; and the claim on be- owner. Consequently he is liable for every loss sushalf of these trustees is that they can only be held tained by reason of his negligence, want of caution or responsible in this action in consequence of gross neg- mistake, as well as positive misconduct." ligence, according to this classification.

In Spering's Appeal, supra, Judge Sharswood said negligence be taken according to its ordinary meaning, that directors “are not liable for mistakes of judgas something nearly approaching fraud or bad faith, I ment, even though they may be so gross as to appear cannot yield to this claim; and if there are any authori- tv us absurd and ridiculous, provided they were honties upholding the claim, I emphatically dissent from est, and provided they are fairly within the scope of them.

the powers and discretion confided to the managing It seems to me that it would be a monstrous proposi- | body.” tion to hold that trustees intrusted with the manage- As I understand this language, I cannot assent to it as ment of the property, interests and business of other properly defining to any extent the nature of a directpeople, who divest themselves of the management and or's responsibility. Like a mandatary, to whom he control of them, are bound to give only slight care to has been likened, he is bound not only to exercise the duties of their trust, and are liable only in case of proper care and diligence, but ordinary skill and judggross inattention and negligence; and I have found no ment. As he is bound to exercise ordinary skill and authority fully upholding such a proposition. It is judgment, he cannot set up that he did not possess true that authorities are found which hold that trus- them. When damage is caused by his want of judgtees are liable only for crassa negligentia, which literally ment, he cannot excuse himself by alleging his gross means gross negligence; but that axiom has been de- ignorance. One who voluntarily takes the position of fined to mean the absence of ordinary care and dili- director, and invites confidence in that relation, ungence adequate to the particular case.

dertakes like a mandatary, with those whom he repreIn Scott v. Depeyster, 1 Ed. Ch. 513, 543, a case much sents or for whom he acts, that he possesses at least cited, the learned vice-chancellor said: “I think the ordinary knowledge and skill, and that he will bring question in all such cases should and must necessarily them to bear in the discharge of his duties.• Story on be, whether they (direotors) have omitted that care Bailments, $ 18.2. Such is the rule applicable to public which men of common prudence take of their own officers, to professional men and to mechanics, and concerns. To require more would be adopting too such is the rule which must be applicable to every per

If gross

son who undertakes to act for another in a situation or than $25,000. This contract was reported by the comemployment requiring skill and knowledge; and it mittee to the trustees at a meeting held April 7. matters not that the service is to be rendered gratu- On the first day of May, 1873, the real estate was conitously.

veyed and the cash payment was made, and four sepaThese defendants voluntarily took the position of rate niortgages were executed to secure the balance, trustees of the bank. They invited depositors to con- one upon each lot. The mortgage upon the lot upon fide to them their savings, and to intrust the safe- which the bank building was afterward erected was keeping and management of them to their skill and for $30,500. At the same time the bank became obliprudence. They undertook not only that they would gated to build upon that lot a building covering its discharge their duties with proper care, but that they whole front, 25 feet, and 60 feet deep, and not less than wouid exercise the ordinary skill and judgment re- five stories high, and have the same inclosed by the quisite for the discharge of their delicate trust.

first day of November then next. Upon that lot the Enough has now been said to show what measure of bauk proceeded, in the spring of 1875, to erect a builddiligence, skill and prudence the law exacts from ing covering the whole front and 76 feet deep and five managers and directors of corporations, and wo are stories high, at an expenso of about $27,000, and the now prepared to examine the facts of this case for the building was nearly completed when the receiver of the purpose of seeing if these trustees fell short of this bank was appointed in November of that year. The measure in the matters alleged in the complaint. three lots not needed for the building were disposed

This bank was incorporated by the act chapter 467 of of, as we may assume, without any loss, leaving the the Laws of 1867, and it commenced business in the corner lot used for the building to cost the bank $29,250; spring of that year in a hired building on the east side and wo may assume that that was then the fair value of third avenue in the city of New York. It remained of the lot. This case may then be treated as if these there for several years, and then removed to the west trustees had purchased the corner lot at $29,250, and side of the avenue between Forty-fifth and Forty-sixth bound themselves to erect thereon a building costing streets, wbere it occupied hired rooms until near the $27,000. When the receiver was appointed, that lot time of its failure in tho fall of 1875. During the and building, and other assets which produced less whole time the deposits averaged only about $70,000. than $1,000, constituted the whole property of the In 1867 the income of the bauk was $942.12, and the bauk; and subsequently tho lot and building were expenses, including amounts paid for safe, fixtures, swept away by a mortgage foreclosure, and this action charter, current expenses and interest to depositors, was brought to recover the damages caused to the were $5,571.34. In 1868 the incomo was $5,471.43, and bank by the alleged improper investment of its funds, the expenses, including interest to the depositors, as above stated, in the lot upon which the building was $5,719.43. In 1869, tho income was $3,918.27, and the erected. At the time of the purchase of the lot, the expenses and interest paid $5,346.05. In 1870, the in- bank was substantially insolvent. If it had gone into come was $5,784.09, and expenses and interest $7,040.22. liquidation, its assets would have fallen several thouIn 1871 the income was $13,551.14, which included a sand dollars short of discharging its liabilities, and bonus of $4,000 or $6,000 obtained upon the purchase this state of things was known to the trustees. It had of a mortgage of $40,000, which mortgage was again been in existence about six years, doing a losing busisold in 1874 at a discount of $2,000, and the expenses,

The amount of its deposits, which its managers including interest paid, wero $9,124.05. In 1872 the had not been able to increase, shows that the enterincome was $5,100.51, and the expenses, including in- prise was an abortion from the beginning; either beterest paid, were $7,212.49. Down to the first day of cause it lacked public confidence, or was not needed January, 1873, therefore, the total expenses, including in the place where it was located. It had changed its interest paid, were $5,046 more than the income. To location once without any benefit. It had on hand but this sum should be added $2,000, deducted on the sale about $13,000 in cash, of which $10,000 were taken to of the largo mortgage in 1874, which was purchased at make the first payments. The balance of its assets the large discount in 1871, as above mentioned, and yet was mostly in mortgages not readily convertible. One entered in tho assets at its face. From this apparent was a mortgage for $40,000, which had been purchased deficiency should be deducted the value of the safe and at a large discount, aud we may infer that it was not furniture of the bank, from which the receiver subse- very salable, as the trustees resolved to sell it as early quently realized $500. At the samo date the amount as May, 1873, and in August, 1873, authorized it to be due to over one thousand depositors was about $70,000, sold at a discount of not more than $2,500, and yet it and the assets of the bank consisted of about $13,000 was not sold until 1874. In this condition of things, in cash and the balance mostly of mortgages upon real the trustees made the purchase complained of, under estate.

an obligation to place on the lot an expensive bankingWhile the bank was in this condition, with a lease of house. Whether, under the circumstances, the purthe rooms then occupied by it expiring May 1, 1874, the chase was such as the trustees, in the exercise of project of purchasing a lot and erecting a banking- | ordinary prudence, skill and care could make, or house thereon began to bo talked of among the trustees. whether the act of purchase was reckless, rash, extravaThe only reason put on record in the minutes of the gant, showing a want of ordinary prudence, skill and meetings held by tho trustees for procuring a new care, were questions for the jury. It is not disputed banking-house was to better thc financial condition of that under the charter of this bank, as amended in the bank. In February, 1873, at a meeting of the 1868 (chapter 294), it had the power to purchase a lot trustees, a committee was appointed “on a site for a for a banking-house, “requisite for the transaction of new building:" and in March the committee entered its business." That was a power, like every other posinto contract for tho purchase of a plot of land, con- sessed by the bank, to be exercised with prudence and sisting of four lots, on the corner of Forty-eighth care. Situated as this moribund institution was, was street and Third avenue, for the sum of $74,500, of it a prudent and reasonable thing to do, to invest uearly which $1,000 was to be paid down, $9,000 on the first half of all the trust funds in this expensive lot, with day of May then next, and $64,000, to be secured by a an obligation to take most of the balance to erect mortgage, payable ou or before May 1, 1875, with inter- thereon an extravagant building? The trustees were est from May 1, 1873, at seven per cent; and there was urged on by no real necessity. They had hired rooms an agreement that payment of the principal sum se- where they could have remained; or if these rooms cured by the mortgage might be extended to May 1, were not adequate for their small business, we may 1877, provided a building should, without unavoidable assume that others could have been hired. They put delay, bo erected upon the corner lot, worth not less forward the claim upon the trial that the rooms they


then occupied were not safe. That may have been a be adjusted, and there was no occasion to appeal to an good reason for making them more secure, or for get- equity forum. ting other rooms, but not for tho extravagance in Treating this therefore as an action at law, it folwhich they indulged. It is inferable, however, that lows also that the objection taken, that the other the principal motive which influenced the trustees to trustees should have been joined as defendants, cannot make the change of location was to improve the finan- prevail. In actions ex delictii the plaintiff may suo cial condition of the bank by increasing its deposits. one, some or all of tho wrong-doers. Liquidators of Their project was to buy this corner lot and erect Western Bank v. Douglas, 22 Sess. Cas. (3d series) 475, thereon an imposing edifice, to inspire confidence, at- Scotch; Barbour ou Parties, 203. tract attention and thus draw deposits.

The defendants Hoffman and Gearty filed petitions It was intended as a sort of advertisement of the for their discharge in bankruptcy after the commencebauk; a very expensivo one; indeed, savings banks ment of this action, and were discharged before judgare not organized as business enterprises. They have ment, and they alleged such discharge as a defense to no stockholders, and are not to engage in speculation or the action. The trial judge and General Term held money-making in a business sense. They aro simply that the dischargo furnished no defense, and wo are of to take the deposits, usually small, which are offered, the same opinion. This claim was purely for unliquiaggregate them and keep and invest them safely, pay- dated damages occasioned by a tort. Such a claim is ing such interest to the depositors as is thus made, not provablo in bankruptcy, and therefore was not after deducting expenses, and paying the principal upon discharged. U. S. R. S. (2d ed.), ss 5115, 5119, 5067 to demand. It is not legitimate for the trustees of such 5071; Zimmon v. Ritterman, 2 Abb. (N. S.) 261; Kela bank to seek deposits at tho expense of present de- logg v. Schuyler, 2 Den. 73; Crouch v. Gridley, 6 Hill, positors. It is their business to tako deposits when 250; In re Wiggers, 2 Biss. 71; In re Clough, 2 Ben. 508 ; offered. It is not proper for these trustees, or at least In te Lidle, 2 Bank. Reg. 77. the jury may have found that it was not, to take the I conclude, therefore, that the judgment appealed money then on deposit and invest it in a banking- from should be affirmed. house merely for the purpose of drawing other depos- The appeal by the plaintiff from the order of tho its. In making this investment, the interests of the General Term, granting a new trial as to defendant depositors, whose money was taken, can scarcely be Smith, must, for reasons stated on tho argument, be said to have been consulted.

dismissed, with costs. It matters not that tho trustees purchased this lot

All concur. for no more than a fair value, and that the loss was occasioned by the subsequent general decline in the ESCAPED CRIMINAL MAY NOT MAINTAIN value of real estate. They had no right to expose

APPEAL FROM CONVICTION. their bank to the hazards of such a decline. If the purchase was an improper one when made, it matters

CALIFORNIA SUPREME COURT, JULY 20, 1880. not that the loss came from the unavoidable fall in the value of the real estate purchased. The jury may have found that it was grossly careless for the trustees

PEOPLE OF CALIFORNIA V. REDINGER. to lock up tho funds in their charge in such an invest- When one convicted of a crime has escaped from custody ment, where they could not be reached in any emerg- he has, while he remains at large, no right to appear by ency which was likely to arise in the affairs of the counsel and prosecute an appeal from tho judgment of crippled bank. We conclude, therefore, that the evi

conviction. dence justified a finding by the jury that this was not

The opinion states the case. part of the trustees, but that it was a case of improvi

A. L. Hart attorney-general, for the people. dence, of reckless, unreasonable extravagance, in which the trustees failed in that measure of reasonable pru

John C. Dewel, for appellant. dence, care and skill which the law requires.

THORNTON, J. The defendant was indicted for the This case was moved for trial at a Circuit Court, and murder of one James King; was tried in the District before the jury was impaneled the defendants claimed Court of Colusa county under this indictment, and on that the case was improperly in the Circuit, and that the 16th of December, 1870, convicted of murder in it should be tried at the Special Term, and the court the first degree. Tho defendant moved for a new ordered that the trial proceed; and at the close of the trial, which was denied. The court in due course procvidence the defeudants moved that the complaint bo nounced sentence of death by hanging. The defenddismissed, on the ground that the action was not a

ant prosecuted an appeal to this court, notice of tho proper one to be tried before i jury and should be samo having been served on the 9th of February, 1880, tried before the equity branch of the court. The and the cause was here for argument at the session of motion was denied, and these rulings are now alleged | May, 1880, held at the city of Sacramento. for error. The receiver in this case represents the bank When the cause was called for argument, the attorand may maintain any action the bank could have ney-general moved the court for an order dismissing maintained. The trustees may be treated as agents of the appeal on the ground that since the appeal was the bank (In re German Mining Co., 27 Eng. Law & Eq. taken the defendant had escaped from jail, and was 158; Belknap v. Daris, 19 Me. 455; Bedford R. R. Co.

no longer in custody to abide the sentence of the court. v. Bowser, 48 Pem. St. 29; Butts v. Woods, 38 Barb. This fact is certified to the court by the affidavit of the 181; Austin v. Daniels, 4 Den. 299; Ohio & M. R. R. sheriff of the county aforesaid, in whose custody the Co. v. McPherson, 35 Mo. 13), and for any misfeasance prisoner had been since the conviction and sentence or nonfeas:ince causing damage to the bank they were above mentioned, who deposes under oath that the responsible to it, upon tho same principle that any defendant, by stratagem and force, on the 5th day of agent is for like cause responsible to his principal. It April last, escaped from the jail aforesaid, and was has never been doubted that a principal may sue his then at large. The affidavit bears date the 19th day of agent in an action at law for any damages caused by May, 1880. Of the escape there is no denial. culpable misfeasance or nonfeasance in the business of The question is one of interest and importance; is the agency. The only relief claimed in this complaint new in this State, no case decided by any of its courts was a mopey judgment, and we think it was properly having been produced to us. Several cases were called tried as an action at law. No equitable rights were to to our attention on the argument of this motion, and

a caso of mere error or mistake of judgment "ali 16€ | APPEAL from the Superior Court of Colusa County.

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A reply has been made on behalf of defendant. An So far as the defendant has any right to be heard objection was taken by the attorney-general to any under the Constitution, he must be deemed to have one being heard for the defendant, on the ground that waived it by escaping from custody, and failing to apthis' court ought not to recognize any one as counsel pear and prosecute his exceptions in person, according for him after he bad voluntarily withdrawn himself to the order of the court under which ho was comfrom the jurisdiction of this court and the court in mitted. Defendant defaulted. Exceptions overruled." which the conviction was had and sentence pronounced. The People v. Genet, 59 N. Y. 80 (1874), is also cited. However, a brief was allowed to be filed on behalf of In (this case the defendant had been convicted of a defendant, which has been since done.

felony, and upon this conviction was committed to In discussing the motion several cases were brought custody to await sentence pending an application for to our notice by the attorney-general. We have ex- the settlement of a bill of exceptions. When this bill amined these cases and others not cited on the argu- was presented for settlement, the court declined to ment.

settle it on the ground that the defendant had, since The earliest decision bearing on the point is in an the conviction, escaped from custody; had absconded, anonymous case in Maine (see 31 Me. 592), decided and was then at large. An application was made to in 1850. It is thus reported: “A defendant had been the Supreme Court for a mandamus to compel the tried and convicted upon an indictment for an aggra- trial court to settle and seal the bill of exceptions. vated offense. He excepted, and was committed for The Supreme Court denied the application, and the want of sureties to appear at the law term, at which matter was brought on appeal before the Court of the exceptions were to be heard. Meanwhile he Appeals. This court affirmed the order of the Suescaped. His counsel proposed to argue the excep- preme Court. The Court of Appeals held it essential tions. But the court declined to hear the case until to any step, on behalf of a person charged with felony the defendant should be again in custody."

after indictment found, that he should be in actual Sherman v. Commonwealth was decided by the Vir- custody by being in jail, or constructively, by being ginia Court of Appeals in 1858. See 14 Gratt. 677. In let to bail. The court, per Johnson, J., said: this case Sherman was convicted of a felony, and was “The whole theory of criminal proceedings is based sentenced to six years' imprisonment in the peniten- upon the idea of the defendant being in the power and tiary. He obtained a writ of error from the Court of under the control of the court, in his person. While Appeals, which was directed to operate as a superse- the Coustitution and the statute provide him with deas to the judgment. While it was pending in the counsel, and the statutes give the right of appearance appellate court, Sherman broke jail and absconded. by attorney in civil cases, they are silent in respect to The attorney-general moved the court for a rule upon the representation of persons charged with felony by the prisoner to show cause why the court should not means of an attorney; and in regard to those charged set aside the supersedeas, or postpone the hearing of with lesser offenses, the statutes permit them to be the cause until the prisoner should return to the proper

tried in their absence from court only on the appearcustody. This order was made, and the motion was ance of an attorney duly authorized for that purpose. afterward argued on behalf of the Commonwealth and This authority, it has been held, must be special, and the plaintiff in error. The court adjudged that so distinctly authorize the proceedings. People v. Petry, much of the order awarding the writ of error as di- 2 Hilt. 525; People v. Wilkes, 5 How. Pr. 105. Even in rected it to operate as a supersedeas be discharged, and the absence of statutory regulations, this rule has been further ordered that the writ of error be dismissed on enforced in the courts of the United States. United the 1st of May next, 1859, unless it should be made to States v. Mayo, 1 Curtis' C. C. 433. In criminal cases appear to the court on or before the day above named there is no equivalent to the technical appearanco by that the plaintiff in error is in the custody of the attorney of defendant in civil cases, except the being proper officers of the law. This judgment was after- in actual or constructive custody. When a person ward approved by the same court in Leftwich's case, charged with felony has escaped out of custody, no in which defendant had been convicted of a felony. order or judgment, if any should be made, can be See 20 Gratt. 723, decided in 1870.

enforced against him; and courts will not give their The case cited from Massachusetts (Comm. V. An- time to proceedings which for their effectiveness must drews, 97 Mass. 543) was decided in 1867. Andrews was depend upon the consent of the person charged with convicted of receiving stolen property. He alleged crime." The opinion ends with this remark: “We exceptions, which were allowed, and was held in jail think they (referring to the statutes of New York givto prosecute. When the case was called in the Su- ing to defendant a right to make a bill of exceptions) preme Court, the attorney-general suggested that the do not require the courts to encourage escapes and defendant had broken jail and was at large, and asked facilitate the evasion of the justice of the State by that he should be defaulted, and the exceptions over- extending to escaped convicts the means of reviewing ruled without argument. The court heard argument their convictions." on the motion by the counsel for defendant, who In Smith v. United States, 94 U. S. 97 (1876), the stated (as appears from the report) the points in his plaintiff in error had been convicted of some offense behalf with force and clearness; and we would infer, (the report 'does not stato the offense), and had sued from what is stated in the report, that the motion was out a writ of error to the United States Supreme elaborately argued by the counsel who spoke for the Court to have the conviction reversed. Afterward ho defendant. The court granted the motion. We insert escaped from custody. The cause was docketed in the here the brief opinion:

Supreme Court, December 29, 1870. It had been con“The defendant, by escaping from jail, where he was tinued at every term up to the time of the decision, held for the purpose of prosecuting these exceptions for the reason that no one had appeared to represent and abiding the judgment of the court thereon, has the plaintiff in error. At the October term, 1876, the voluntarily withdrawn himself from the jurisdiction court, on motion, dismissed the writ for want of proseof the court. He is not present in person, nor can he cution, but on motion of counsel for the plaintiff, be heard by attorney. A hearing would avail nothing. reinstated it, who moved to have it set down for arguIf a new trial should be ordered, he is not here to an- ment. The court denied the motion, and ordered swer further; if the exceptions are overruled, a sen- that unless the plaintiff in error submitted himself to tence cannot be pronounced and executed upon him. the jurisdiction of the court below on or before the The attorney-general has a right to ask that he should first day of the next term of the court, the cause is to be present to receive the judgment of the court. be left off the docket after that time. The court held, Chit. Crim. Law, 663; Rex v. Caudwell, 17 Q. B. 503. in this case, that it was within its discretion to refuse to hear a criminal case in error, unless the convicted at least in a case amounting to felony, does not exist party suing out the writ is where he can be made to in the counsel at all in the absence of the defendant. respond to any judgment it might reuder. It thus This view seems to be sustained by the statute of this declared it, per Waite, C. J.:

State, and to be derived from a history of the law re“In this case it is admitted that the plaintiff in error garding counsel in criminal cases. has escaped, and is not within the control of the court The history of the law as regards capital cases will below, either actually, by being in custody, or con- be found in Blackstone's Commentaries. See Book 4, structively, by being out ou bail. . If we affirm the 355, 356. This author seems to doubt whether it was judgment, he is not likely to appear to submit to his not allowed by the ancient law of England, and cites sentence; if we reverse it, and order a new trial, he the Mirror, ch. 3, & 1. In a note it is said that the will appear or not, as he may consider most for his in- right of counsel to plead for them was first denied to terest. Under such circumstances, we are not inclined prisoners by a law of IIenry I (ch. 47, 48), which is to hear and decide what may be a moot case." 9# U. construed as an erroneous interpretation of tho law. S. 97.

However, this author states it is a settled rule at In Queen v. Caudwell, 17 Q. B. 503 (November, 1851), common law that no prisoner should be allowed a the defendant had been convicted of perjury, and counsel upon his trial on the general issue in any capsentenced to seven years' transportation. Pigott, for ital crime, unless some point of law arose which was the defendant, was about to move for a new trial. It proper to be debated. The denial was on the ground appeared that the defendant was absent. Lord Camp- that the judge was counsel for the prisoner - a right bell, C. J., said: “The defendant must be in court. of but little worth when a Jeffries or Scroggs presided. Erle, J., concurred, and mentioned a like ruling by The privilege was only accorded in the case of State Lord Denman in a case where he (Erle) was for the de- criminals by the statute of 7 William III, ch. 3 (Proffendant. Lord Campbell added: “This is peculiarly a fatt's Jury Trial, $ 205). This statute applied to all case where the rule ought to be enforced, because the cases of such high treason as worked corruption of sentence has been passed on him, and is evaded by bis the blood, misprision of treasoni, except treason in absence. When he appears you may renew your mo- counterfeiting the King's coin or seal; such prisoners tion." He referred to Rex v. De Baringer, 3 M. & S. were allowed to make their full defense by counsel, 07. The motion was not heard, on the ground that the not exceeding two, to be named by the prisoner and defendant was not forthcoming to meet his sentence. appointed by court or judge. The same indulgence (Campbell, C. J.; Patterson and Erle, JJ., concurring.) was extended by statute (20 George III, ch. 30) to par

See, also, Queen v. Chichester, 17 Q. B. 514 (Novem- liamentary impeachments for high treason; "which,"
ber 24, 1851), where on motion for judgment against says Blackstone, “were excepted in the former act."
defendant, who had suffered judgment to go by de- 4 Bl. Com. 356.
fault on an indictment for nuisance, and without Prisoners under a capital charge, whether for treason
laches of the prosecution, the defendant having gone or felony, upon issues which did not turn on the ques-
out of reach before he could be served with notico to tion of guilty or not guilty, but on collateral facts, al-
appear for judgment, the court refused to pass sen- ways were entitled to the full assistance of counsel.
tence in his absence, although it appeared that the re- Foster, 42, 232; Chitty's note on page above cited from
moval of the nuisance, which was to a public naviga- Blackstone's Commentaries.
tion, was important, and that the judgment of the In misdemeanors tho defendant was always allowed
court was wanted to authorize the abating it. The counsel as in civil actions. 4 Bl. Com. 356. In all
court held that the remedy was by process of out- cases of felony defendants (by statutes 6 and 7 Wil-

liam IV, ch. 114, § 11) are allowed counsel.
In the case under consideration, has tho defendant It will be observed from tho above that Blackstone
waived the right to have his caso considered and deter- refers to prisoners as being allowed counsel to appear
mined? This was held, in so many words, in the case and defend. He nowhere speaks of any such allow-
from Massachusetts (Commonwealth v. Andrews, ance to persons not in custody. How far is the right
supra), and the same may be regarded as the rule laid secured to tho persons convicted or charged with pub-
down and acted on in the Virginia cases (Sherman's lic offenses by the statute laws of this State? See SS
case and Leflwich's case, supra). Tho determination 858, 859, 987, 1093, 1095, 1254 of tho Penal Code.
under the facts here presented not to hear the cases was It is apparent from an examination of the above
considered within the discretion of the court --- the sections that this right is confined to persons charged
discretion to be exercised to be a judicial discretion with a public offense only when in custody. In fact,
within limits defined by the law. Iu Genet's case, courts have no jurisdiction over persons charged
supra, the right to have a bill of exceptions settled with crime, unless in custody, actual or constructive.
was held not to exist on behalf of an escaped convict. It would be a farce to proceed in a criminal cause, un-
In the case in Maine the court refused to hear the ar- less the court had control over tho person charged, so
gument; and in the case from New York (59 N. Y. 80), that its judgment might be made effective. It is
the right to be represented by counsel, guaranteed true that an indictment may be found against ono
both by the Constitution and statutes to defendants not in custody, but steps are directed to be taken in
in cases of felony, is held not to exist wheu the de- such case to secure his person (Penal Code, ss 945, 979,
fendant is not actually or constructively in custody, so 984); and unless an arrest is effected, the cause can
that the sentence of the court can be enforced when proceed no further. The defendant is arraigned in
pronounced. An exception to that rule is referred to person, and pleads in person (S 977, Penal Code), unless
in the opinion as to offenses less than felony.

in case of misdemeanor. Id. Every plea must be The provision of the Constitution of this State, both oral. Penal Code, s 1017. in the first Constitution and that recently adopted, as By section 1253 of the Penal Code it is provided, as regards this right, is,to appear and defend in person to criminal causes, that “the judgment may be afand with counsel." The former Constitution bad ap- firmed if the appellant fail to appear, but can be repended to this provisiou, "as iu civil actions." That versed only after argument, though the respondent is omitted in the instrument of 1879. The language is fail to appear,” and by section 1255 that “the defend. suggestive, and indicates that the party charged is not ant need not personally appear in the Appellate allowed to appear and defend by counsel, but with Court." It may be urged that inasmuch as the decounsel - the person acting as counsel to be present fendant need not personally appear in the Appellate with the defendant, and not without him. In these Court (S 1255, Penal Code, ut supra.), he has a right to words it seems as if the power to appear and defend, appear by counsel, whether he is in custody or not.

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