Young v. State

39 Ala. 357

Opinion

STONE, J.

Two well-defined principles of law render it necessary that the judgment pronounced by the circuit court in this case be reversed : first, that judgment cannot be given against any man, in his absence, for a corporal punishment;' and, second, that the record must affirmatively show the prisoner’s presence.—Kelly v. State, 3 Smedes and Mar. 518-28; Cole v. State, 5 English, (Ark.) 324-5; State v. Hughes, 2 Ala. 104; People v. Perkins, 1 Wendell, 91; Rex v. Duke, 1 Salk. 400; Dunn v. Commonwealth, 6 Barr, 384; Jacobi v. Commonwealth, 5 Serg. & R. 315; Wade v. The State, 12 Geo. 25; Regina v. Parkinson, 6 Eng. L. & Eq. 352. Possibly, it is enough if tbe record show by fab' inference that tbe prisoner was present wben tbe sentence was pronounced; but bis presence must be affirmatively shown.—State v. Craton, 6 Ired. 164; Sperry v. Commonwealth, 9 Leigh, 623; 2 Lead. Cr. Cases, 449, and note. It is much tbe safer practice, however, to express tbe fact positively, and leave nothing to inference.

There is nothing in the present record which tends to show that the defendant was present when the sentence of imprisonment was pronounced, — some eight days after the verdict of the jury was rendered.

[2.] But this reversal extends no further than the final judgment of the court, rendered on the 7th day of April; that which superadds the ten days’ imprisonment. The case is remanded, that the circuit court, having the defendant personally present, may consider of, and determine the question of imprisonment under the statute, (Code, § 3285,) as part of its judgment in this cause.—Kelly v. State, 3 Sm. & Mar. 528; Cole v. State, 5 Eng. (Ark.) 325; People v. Clark, 1 Park. Cr. Cases, 369; 2 Lead. Cr. Cases, 451.

Beversed in part, and remanded.