United States v. Leckie

26 F. Cas. 906, 1 Sprague 227

Opinion

At a subsequent day,

SPRAGUE, District Judge,

said: The party charged with a misdemeanor may, in the discretion of the court, be allowed to plead by attorney, and be tried in his absence. It is often highly proper, that this discretion should be exercised in favor of the accused. As it is very desirable that the rules by which this discretion will be guided, so far as any can be laid down, should be the same in the circuit and district courts, I have consulted with Mr. Justice CURTIS, of the supreme court, and we have concurred in the following:

Where the punishment may be only a fine, and there is no special reason to suppose that imprisonment will be necessary, the court will allow the party charged with a misdemeanor to plead, by an attorney specially authorized thereto, by a power of attorney filed in court; and to be tried in his absence, if the necessity for such absence be made to appear by affidavit, and the district attorney consent thereto. If the district attorney should withhold his consent, without sufficient cause, the court will, notwithstanding such refusal, allow the party to plead and be tried in his absence. Where the punishment must, by law, be imprisonment, or the court has good reason to believe that it will be their duty, in case of conviction, to inflict that punishment, the court does not think fit to indicate any general rule for allowing the party to plead and defend in his absence, but will exercise its discretion upon the circumstances of each case.