People v. Ebner

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action upon a forfeited recognizance, executed by the defendants as sureties for one A. Heilbron, for his appearance to answer to an indictment for the crime of false imprisonment. On the trial the plaintiff introduced in evidence the record of the Court of Sessions of Amador County, in which the indictment was pend-[160]mg, relating to the default of the party charged with the offense, which showed that when the case was called the defendant Heilbron appeared by attorney, though not in person, and tendered to the Court a plea of not guilty to the indictment; but the Court refused to accept the plea, and, on motion of the District Attorney, he was three times called at the window of the court-house, and not appearing in person his default was entered, and his recognizance declared forfeited. The defendants in this action, upon the production of this record, insisted that the defendant in the indictment had a right to appear and plead to it by attorney, and that his personal presence was not necessary—the offense charged being a mere misdemeanor, and not a felony; but the Court below overruled their objection and rendered judgment for the plaintiffs, from which the defendants appeal.

Sec. 259 of the Criminal Practice Act provides that: “ If the indictment be for a felony, the defendant must be personally present ; but if for a misdemeanor, his personal presence is unnecessary, and he may appear upon the arraignment by counsel.” Sec. 320 also provides: “ If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; but if for a felony, he must be personally present.” So, also, Sec. 415 provides that in cases of misdemeanor the verdict may be rendered in the absence of the defendant. A forfeiture must be strictly proved. The record discloses that the Court of Sessions had no power or authority to enter a default, or to declare the recognizance forfeited.

The judgment is therefore reversed, and the Court below is directed to dismiss the action.