State v. Brooks, 211 N.C. 702 (1937)

June 9, 1937 · Supreme Court of North Carolina
211 N.C. 702


(Filed 9 June, 1937.)

Criminal Xiaw § 61a — Defendant must be present when judgment of corporal punishment is pronounced.

In this prosecution for abandonment, defendant entered a plea of nolo contendere, and an order was entered that defendant pay a certain amount into court monthly for the benefit of his wife and children. Thereafter, upon default, judgment was entered in the absence of defendant and without his knowledge, on his original plea, sentencing defendant to two years on the roads, sentence to begin on a stipulated day unless defendant paid all matured installments under the prior order. Held: The judgment attempting to impose corporal punishment, in the absence of defendant, unless avoided by compliance with the conditions annexed, was void.

*703PbtitioN by G. M. Brooks for certiorari as substitute for appeal, or in tbe nature of a writ of error (S. v. Moore, 210 N. C., 686), filed originally in tbe Supreme Court, and granted at tbe Spring Term, 1937.

Attorney-General Seawell and Assistant Attorney-General McMullan for the State.

T. T. Thorne, G. 0. Pierce, and J. L. Simmons for defendant.

Stacy, C. J.

Tbe petitioner entered a plea of nolo contendere at tbe March Term, 1932, Nasb Superior Court, to an indictment charging him with abandonment and nonsupport of bis wife and children. C. S., 4447; S. v. Bell, 184 N. C., 701, 115 S. E., 190. An order was entered requiring tbe defendant to pay into tbe clerk’s office for tbe support and maintenance of bis children certain monthly stipulated amounts, which were later increased, and subsequently reduced to tbe original sums. C. S., 4449. Default having been made in said payments, judgment was entered at tbe December Term, 1936, upon tbe defendant’s original plea of nolo contendere, without bis knowledge or presence, assigning tbe defendant to two years on tbe roads, “sentence to begin on tbe first day of tbe first January Term, 1937, Nasb Superior Court, unless it shall appear that tbe defendant has paid into tbe office of tbe clerk of tbe Superior Court of Nasb County all matured installments under tbe orders entered herein, and has likewise filed with said clerk a bond in tbe penal sum of $1,000, guaranteeing tbe payment of future installments as they mature. If said conditions are not complied with, then and in that event tbe clerk of tbe Superior Court of Nasb County is ordered and directed to issue capias and commitment and tbe solicitor of tbe district is directed to take action to have tbe defendant extradited to tbe end that tbe sentence herein imposed may be put into effect.”

Tbe validity of this judgment, attempting to impose corporal punishment upon tbe defendant, unless avoided by compliance with tbe conditions annexed, is challenged on two grounds: First, because entered without tbe knowledge or presence of tbe accused; and, secondly, for alterna-tiveness. Tbe first ground of tbe challenge would seem to be valid, and will be sustained on authority of S. v. Cherry, 154 N. C., 624, 70 S. E., 294. Consideration of tbe second ground is pretermitted. See, however, S. v. Perkins, 82 N. C., 682; Dunn v. Barnes, 73 N. C., 273; Hagedorn v. Hagedorn, 210 N. C., 164, 185 S. E., 768, and cases there cited. Compare S. v. Vickers, 196 N. C., 239, 145 S. E., 175.

Speaking to tbe first ground of tbe challenge in tbe Cherry case, supra, Hoke, J., delivering tbe opinion of tbe Court, said: “While our decisions have established that in case of waiver tbe presence of tbe accused is not necessary to a valid trial and conviction, all of tbe authorities here *704and 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, 89 N. C., 540, Ashe, J., delivering the opinion, said: Hut 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.” ’ ” This accords with the general statement of the law on the subject. 8 R. C. L., 234; 16 C. J., 1292.

For the reason stated, the judgment entered at the December Term, 1936, will be stricken out.