Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-12-27
HOLDING THEN DOWN.
AN IMPORTANT DECISION AFFECTING
PETIT COURTS.
Judge Armstrong Defines Their Scope
in Certain Cases Interesting
Legal Points.

other cases heard by him was the one Ge-
cided below. The case was taken under
advisement in Yuba, and yesterday Judge
Armstrong forwarded the following de-
cis;on to the Clerk of the Court in that
county. It deals with the functions OF
Justices and Police Courts, ard will be
found of much interest;
State = Superior Court of the County of Yuba
OF California-Ex paTte Belle Buddington
on habeas coIpds.
The petitioner was tried before the Police
Court of the city of Marysvlile, on the 18th
day of August, 1888, under Section 647 of the
Penal Code for Yagrancy, and she was then con-
yicted and the Court fixed the 9th dey OF
August. 1885, as the time for pronouncing sen
tence against her. The Court permitted her to
go at Large without bail in the meantime, and
when the time for sentence arrived the defend.
ant there but petitioner here, failed to appear
for sentence, and thereupon the Court pro-
ceeded and pronounced sentence against her
of ninety days imprisonment in the County Jail
of the county of Yuba She had left the town
and did not return till November, 1889, wnen
she was arres:ed and imprisoned und.r the
judgment.
The question is: Had the Court jurisdiction OF
the person of the defendant to pronounce iudg-
ment against her of imprisonment in her az
sence? The offeDse was misdemeauor. The
Superior Courts by virtue of Section 1893 of the
Penal Code, in cases of misdemeauor OF
which they have Jurisdiction, may sentence @
defendant in his or her absence. This was so
decided in the People VS.. Budd (57 Cal. 3i9l But
Chapter l of Title XI. of the Penal Code, COM
commencing with section 1926 and ending with
Section l46l, prescrlhes the rules OF law which
must govern Justices and Police Courts in GRIM
inal proceedings therein (; and such other pro-
visions of the Fenal Code as were intended by
the Legislature to apply to such proceedings in
those inferior Courts are mentioned in Sections
1929, 1885, 1886 l45S and 1850: and Section 1893 is
not among the provisions made applicable; and
there is no such provision in the chapter pre-
scribing the mode of preceding in such cases in
Justices and Police Courts. But Section 1434 in
that chapter provides that 1.-THE defendant must
be personally present before the trial can pro-
ceed."
The trial. when once begun, is not ended until
the verdict is rendered and final judgment pro-
nounced thereon. Witt vs. the State Cold
H. The Court obtains jurisdiction of the per-
son OF the defendant 10y issuing a warrant of
arrest, under which its officer arrests the de-
PENDANT and brings him or her before the
Court; and, jurisdiction of the person is re-
tanned by holding the defendant in custody under
the warrant or by admitting him or her to bail,
as prescribed by law, either before or after con-
yiction. Penal Code Sections 1929, 145S, I449)
1t is provided in Section 1919 that the Court
must appoint a time for rendering Judgment.
which must not be more than two days nor less
than six hours after the verdict, unless the de-
PENDANT valves the postpOnement; If postponed
the Court may hold the defendant TO bail to ap-
pear for Judgment" If it is not necessary that
the defendant should be present when iudg-
ment is pronounced, why hold him to bail to
appear for Judgment? The defendant is re-
quired to be personally in Court before the trial
proceeds, aud this section proceeds on the n.y.
pothesis that he or she is in fact in Court and it
provides for enforcing his or her presence at the
time appointed for Judgment.
The provisions OF the Penal Code relative to
bail are applicable to bail in Justices and Police
Courts. penal Code, 14.S And by Section 1885,
which relates to bail, If the defendant has been
discharged on ball. and does not appear for
Judgment the Court, in addition to the forfeit
ure of the undertaking OF bail, may direct the
clerk, If any, to issue warrant for the arrest of
the defendant; but if the Court has 10 clerk
then the Court may issue warrant for the ar
rest ofthe defendant to bring him into Court for
judgment. But this section docs not authorize
the issuance OF warrant for the arrest of de-
fendant unless he or she had been discharged
on bail, and failed to appear for Judgment
Such is the meaning of this section when read
IN the light OF the law prescribing the proceed
ure in Justices and Police Courts
1t would seem clear that, as the meaus of en-
forcing the presence of defendant before judg-
ment, and none to enforce his or her presence
after judgment, are provided by law, il was in
tended that he or she should be present at all
stages of the trial. This accords with the COM
mon law. At the common law. when corporal
punishment for felony or misdemeanor was to
be inflicted, such as rillory or imprisonment,
the defendant must be personally present in
or her; but where pecuniary Penalty only can
be awarded judgment may be given in his or
her absence. The reason for this distinction, as
stated by Chitty, is this: There can be no
process after judgment to bring the defendant
in in order TO set him in the pillory or to visit
him with any corporal infections" But
cdpidS pro fine may be issued TO take him, as in
a civil case, if he refuses to pay the fine n
Chit. Or. Law, sos, $50; People VS.. Winchell,
Cowen, 525 and notes thereto; Son VS.. People, II
Wend, 344; Clark VS.. The State, Hump, Isl;
Andrews vs. The State, Sneed 550 state VS..
Jones, Yerger, 21.)
The common law of England so far as it is
not repugnant to or inconsistent with the Con-
stltution of the United States, or the Constitu-
ton or laws of this State is the rule of decision
Section 1851 And the com mon law rule, ac-
cording to Chitty, is that where defendant is
committed to prison it ought to appear upon
the record thst he was present at the time of
committaP page $500.
This principle of the common law was applied
in the case of eX parte kearney, 50 Cal. DO,
where the Court decided that where there are
no presumptions in favor of the jurisdiction of
the Justices or the Police Courts it must appear
afiirmatively from the record that such inferior
court had jurisdiction of the offense and the
person of the defendant at the time of pro-
nouncing judgment. or the judgment would be
void. And in Andrews VS.. the state, 2 Sneed,
$751; the Court decided that fthe defendant be
absent either in prison or by escaps, there is
want of jurisdicti over his person to proceed
pronounce final judgment" In that case the
defendant had escaped during the trial, but af-
ter the jury retired TO deliberate upon their YER
dict, and the Count said I'VE conclude that
the action of the Court in receiving the YER
diet and rendering the judgment in the
absence of the defendant was illegal AS to
the nature and extent of the error it was
such as to yitiate the proceeding and render
it, not voidable merely, but null and void; it
being founded in a want OF jurisdiction over the
person of the accused at the time the verdict
and Judgment were rendered. A defect
of jurisdiction as to the subject or per-
son has the effect to render the juGg-
ment OF a Court absolutely void This case
was affirmed in the later case of Witt VS.. the
State, ) Cold. II. And in the People vs. Red
niger, 81 Cal, Dos, the Court said Sin fact
Courts have no jurisdiction over persons charged
with crime, unless in custody, actual or con-
structive. 1t would be a farce to proceed in
criminal cause unless the Court had control
over the person charged SO that its Judgment
might be made effective"
defendant is il actual custody when held
in Court under the warrant of arrest: he or she
is IN constructive custody when out on bail. In
the latter case the law provides for taking the
defendant Into actual custody when he or she
fails to appear in Cout according to the terms
of the undertaking of bail. as there is no law
comforting jurisdiction on inferior Courts to pro-
nounce judgment in the absence of the defend.
ant, and the petitioner was not present when
the Judgment OF imprisonment was rendered
against her, it is void There is nothing in the
point tnat the court cannot consider THIS matter
on habeas corpus.
The counsel Tor the pet;tionermakes the point
that, as one year is the time prescribed in
which prosecution for a misdemeauor may be
instituted after the commission of the offeuse,
by analogy a judgment is barred by the lapse of
one year after its rendition; butitis unnecessary
TO decide this point. The Legislature it may
be presumed, omitted to prescribe Limitation
as TO judgments in criminal cases, because, I'M
less the defendant was st the time of the rem
ditiou of Judgment IN custody, actual or con
struc:ive, there is no process TO take the defend
ant in execution of the Judgment.
II seems 10 be conceded by counsel that after
conviction and before Judgment, the Police
bail. SO that she might leave the city, and the
judgment when rendered in her absence might
be held as mepsce against her return. How
ever, this would seem TO be incredible. 1t
would be using the process of the law, not to
punish Offenders for crime, but to Danish III IN
from the city. The law makes no provision for
the ministers of the law in one city or locality
to Danish their criminas and impose them upon
another city or locality. The duty of the Courts
is to punish crime-not to Danish criminals
and am unwilling TO believe that any Judge
Office IS 10 conBlye At any escape for the puT-
pose OF driving out of his community its criui-
nails instead OF Furnishing them.
But in this case, as the judgment is void, the
petitionec is EMIT ed TO her liberty, and it is
therefore ordered, sdjudged and decreed that
the sheriff do forthwith discharge her from GUS
tody. JOHN W. ARMSTRONG,
Judge Presiding.
AMGsEMEETs.