#### STATE v. TILDEN CHERRY, J. M. RUFFIN, and WALTER GILLAM.

(Filed 1 March, 1911.)

1. Trials — Right of Accused.

In every criminal prosecution the defendant has the constitutional right to be informed of the accusation against him and to confront his accusers and their witnesses.

2. Same — Absence—Waiver.

In felonies less than capital and in misdemeanors the defendant has the right to be present at the trial; but this right may be voluntarily waived by him, the limitation being that in the case of felonies this waiver may not be made by his counsel unless he expressly authorizes them so to do.

*6253. Same.

When the defendant is tried for a felony less than a capital one, and voluntarily absents himself, and especially when he has fled the court, his conduct may be construed as a waiver, wherein his presence is not essential to a valid trial and conviction.

4. Same — Corporal Punishment — Sentence.

When the accused is sentenced by the court to work on the roads, it involves and includes corporal punishment, and in such instances it is essential for him to be present for the sentence to be valid.

5. Same — Sentence Invalid — Procedure.

When a valid trial of the accused has been had in his absence, he having waived his right to be present at the trial by having fled the court, and a sentence has been erroneously passed on him in his absence, the .iudgment of the trial court will be set aside and the cause remanded with direction that a lawful sentence be imposed; the defendant being in custody of the court pending the appeal, and the appeal being regularly presented. The case of S. v. Keebl&r, 145 N. C., 560, cited and distinguished.

Appeal from Ferguson, J., at September Term, 1910, of BERTIE.

Tbe case on appeal states tbe facts as follows: “Tbis was an indictment for larceny, tried before bis Honor, Garland, 8. Ferguson, and a jury, at Bertie Superior Court, September Term, 1910. The only point involved in tbis appeal is tbe exception to tbe judgment of tbe court, who sentenced tbe defendants Tilden Cherry and J. M. Ruffin to tbe roads for twelve months in their absence from tbe court. Tbe defendants Cherry and Ruffin were under bond for their appearance at tbe term and attended tbe trial until tbe argument commenced. The court adjourned for tbe day. At tbe morning session of tbe court, the next day, it was reported to tbe court that tbe defendants Cherry and Ruffin were not in court and bad fled tbe county. The court found as a fact that tbe defendants voluntarily absented themselves, and proceeded with tbe trial, and counsel for these defendants addressed tbe jury, knowing that they were absent. Tbe jury, in tbe absence of tbe two defendants, returned a verdict of guilty. Counsel for said defendants did not object to the rendering of the verdict in tbe ab*626sence of their clients. The court then, in the absence of defendants, had them called out and a judgment nisi entered and their bonds forfeited, and ordered a capias to issue and also sentenced them to a term of twelve months on the roads. Counsel for the defendants did not object to the judgment and sentence. The two defendants Cherry and\ Ruffin were, after the adjournment of the court, apprehended and put to hard labor on the roads.

“From this judgment and sentence in their absence the defendants Cherry and Ruffin appeal to the Supreme Court.”

Attorney-General and, George L. Jones for the State.

Winston & Matthews for defendants.

I-Ioke, J.

It is the law of this State, a principle having-prominent place in our Declaration of Rights, that in every criminal prosecution the defendant has the right to be informed of the accusation against him and to confront his accusers and their witnesses. Applying the principle, this Court has held in several cases that in capital trials this right to be present in the court below cannot be waived, but that the presence of the prisoner is essential at all stages of the trial. In felonies less than capital and in misdemeanors the same right to be present exists, but may be voluntarily waived by the accused, a limitation being that in the case of felonies certainly this waiver may not be made by counsel unless expressly authorized thereto. S. v. Jenkins, 84 N. C., 812. The decisions are also to the effect that when the accused voluntarily absents himself, and more especially when he has fled the court, such conduct may be considered and construed as a waiver, and in that event the presence of the accused is not regarded as essential to a valid trial and conviction. S. v. Pierce, 123 N. C., 745; S. v. Kelly, 97 N. C., 404; S. v. Paylor, 89 N. C., 540; Clark’s Criminal Procedure, p. 423.

Speaking to this question in Kelly’s case, supra, Merrimon, J., delivering the opinion of the Court, said: “While it is settled in this State that the prisoner has the right to be so present during his trial upon a charge for a felonious offense not *627capital, there is neither principle nor statute nor judicial precedent that makes it essential that he shall be. Nor in our judgment is there any common principle of justice essential to the security of personal right, safety, or liberty that so requires.” And further in the same opinion: “A party charged with a felony less than capital has the right to give bail and be at large unless at the trial the court shall order him into close custody. In such case, if defendant flee, pending the trial, the court is not bound to stop the trial and discharge the jury and then give the defendant a new trial. To do so would compromise the dignity of the court, trifle with the administration of justice, and encourage guilty parties to escape, etc.” While our decisions have established that in case of waiver the presence of the accused is not necessary to a valid trial and conviction, all of the authorities here and elsewhere, so far as we have examined, are to the effect that when a sentence, either in felonies less than capital or in misdemeanors, involves and includes corporal punishment, the presence of the accused is essential. Thus, in S. v. Paylor, supra, Ashe, J., delivering the opinion, said: “But where the punishment is corporal the prisoner must be present, as was held in Rex v. Duke, Holt, 399, where the prisoner was convicted of perjury, Holt, C. J., saying: ‘Judgment cannot be given against any man in his absence for corporal punishment; he must be present when it is done.’ ” On authority, therefore, while the trial and conviction of these defendants may very well be sustained, their sentence when absent, involving as it does their corporal punishment, must be declared invalid. S. v. Dolan, 58 W. Va., 263, with a learned note in 6 A. and E. Cases, 450.

This conclusion, however, does not require that the entire proceedings should be disregarded and a new trial ordered. In this and similar cases the accepted ruling is that the judgment be set aside and the cause remanded with directions that a lawful sentence be imposed. S. v. Black, 150 N. C., 866; S. v. Lawrence, 81 N. C., 522; Gole v. State, 10 Ark., 318; Kelly v. State, 11 Miss., 518.

It may be well to note that the disposition we make of this *628appeal in no way trenches upon the principle prevailing with us, that when “pending an appeal a convicted defendant breaks jail and flees the jurisdiction of the court, such conduct may be construed and considered an abandonment of bis appeal.” S. v. Keebler, 145 N. C., 650. In this case appellants are both in custody and tbeir appeal is being regularly prosecuted.

For the reasons heretofore given, the judgment will be set aside and the cause remanded, to the end that sentence be lawfully imposed.

Error.