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cases, and to the extent as respects those matters allowed by the
charter or incorporating act; and the power to pass by-laws under
the general clause does not enlarge or annul the power conferred by
the special provisions in relation to their various subject-matters,
but gives authority to pass by-laws, reasonable in their character,
upon all other matters within the scope of their ipunicipal author-
ity, and not repugnant to the Constitution and general laws of the

Under this rule it was decided that the council at Waldron had
no power to pass the ordinance under which Tuck was convicted.

So in Martiuy ex partem 27 Ark. 467, Martin was fined for violat-
ing an ordinance of the city of Little Bock, regulating sales by auc-
tioneers. The ordinance was passed when the city derived its pow-
ers from the general act of incorporation of April 9, 1869, in which
authority was not expressly given to tax and regulate auctioneers.
Auctioneers were only mentioned in the act in connection with
selling horses or other domestic animals on the streets. Martin was
an auctioneer of merchandise in a house, and it was held that the
ordinance under which he was convicted was void, for want of
power in the corporation to pass it.

No doubt a corporation may make it a penal oflfense for any per-
son to drum customers to gaming-houses, gambling-tables, banks,
etc., strumpet-houses, and other occupations which are immoral and
pernicious in their character and tendencies, such as it has power
under its charter to suppress.

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Thomas v. City of Hot Springs.

But the keeping of hotels, boarding-houses, bath-houses, and the
practice of medicine, by competent persons, are ordinary, lawful
and useful occupations, and to make it a crime to solicit custom for
them, is an unwarranted intierference with constitutional rights
and privileges of citizens under our form of government.

In this case appellant was chaj^gcd and convicted for soliciting a
patient to a physician, who was a graduate of medicine, and skilled,
it is admitted, in his profession. It may be in bad taste, and a
Tiolation of the ethics of his profession, for a physician to employ
a drummer to procure pfatients for him, but appellee had no legal
power to make such drumming a crime, and punish it as such.

The judgment must be reversely ^^^ the cause remanded with
instructions to the court below to discharge appellant from further
prosecution upon the charge made against him.

fPudgment reversed and cause remanded.

VcfTK BT THS Repobtbr.— In Medical and Surgical Iiwtitute ▼. City of Hot Springg^ 8A
Ark. 569, the plaintiff asked an injunction to enjoin the defendant from enfordng the
abore ordinance, bat it was refused, on the ground that chancery does not enjoin oiiiBi*

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119 TBB




(SftCal. n.)

Criminal effidenee — dyifig dedaraUcnt,

DyiDg declaratloDB are not admissible in evidence, if it appean thai thft de-
clarant had the slightest hope of recovery, although he dies within an hovr

nONVICTION of murder. The opinion states the oan.

Alexafuler Camphelly for appellant.
Hie Atiorney-General, for respondent

Ross, J. The defendant was indicted for the crime d mnrclar,
committed upon the person of one Emma C. Downs.

[Omitting a point of practice.]

At the trial, there was offered by the prosecution and admitted
in evidence by the court, against the objection and exception of
the defendant, a paper purporting to be the dying declaratioii of
the deceased, which paper is in these words :

Digitized by


APRIL TERM, 1880. 31

People V. Hodgdon.

^ Dying stateitoent of Mrs. Emma DoWns. Believing I am very
near death, and realizing that I may not reeoyer, I wish to make
this, my dying statement, as to the cause of my death ; and I now,
in the presence of these witnesses, charge Mrs. Hodgdon, on
Howard street, between Sixth and Seventh streets, with having
been the sole canse of my death ; in that she did at three several
times, and lastly, that on yesterday, the 14th day of March, 1878,
did use an instrument or implement on my person for the purpose
of and producing an abortion, and that she and no other person is
to blame in the matter. This being my voluntary statement.

Mrs. Emma Dowks.

" Witness : F. B. H. Wing, M. D.; John Wagner, M. D.

'*San Fbakcisoo, March 15/A, 1878."

There was error in admitting this paper in evidence as the dying
declaration of the deceased. It is essential to the admissibility of
such declarations that it appear that they were made under a sense
of impending death. It is the impression of almost immediate
dissolution that renders the testimony admissible. '^Therefore,'*
says Mr. Greenleaf, in his work on Evidence, "where it appears
that the deceased, at the time of the declaration, had any expecta-
tion or hope of recovery, however slight it may have been, and
though death actually ensued in an hour afterward, the declaration
is inadmissible. On the other hand, a belief that he will not re-
cover is not in itself sufficient, unless there be also the prospect of
'almost immediate dissolution.' '^ This is the rule recognized and
approved by all of the authorities. The only difficulty that arises
comes from the application of the rule to the facts of the particular
case. In the case before us, however* we think it appears upon the
face of the paper itself that the deceased had not abandoned all
hope of recovery ; and this cannot be made plainer than by a repe-
tition of the words themselves* "Believing that I am very near
death, and realizing that I may not recover, I wish to make this
my dying statement," etc. There is here a clear indication that the
deceased, at the time of making the declaration, had not aban-
doned all hope of recovery. The declaration was therefore inadmis-
sible. 1 Oreenl. Ev., § 158; Whart Am. Law of Horn. 306 - 8;
Bex T. Woodoochy % Leach's Cr. Gas. 267, 566 ; Peoph v. Sanchez,
24 0aL24

Id the last case cited, this court said : '^ This species of testimony

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People T. Redinger.

dhould always be received with the greatest caution, and too much
care cannot be observed by the court in scrutinizing the primary
facts upon which its admissibility is grounded. No person is en-
tirely exempt from a disposition to excuse and justify his own con-
duct, or to inflict vengeance upon one at whose hands he has
suffered a grievous wrong ; and in the eyo of the law this procli-
vity is pi*e8umed, in cases like the present, to be overcome and
silenced only by the presence of almost immediate death. An un-
doubting belief existing in the mind of the declarant, at the time
the declarations are made, that the finger of death is upon him, is
indispensable to that sanction which the law exacts ; and if it shall
appear, in any mode, that there was a hope of recovery, however
faint it may have been, still lingering in his breast, that sanction
is not afforded, and his statement cannot be received.''

Judgment and order reversed, and cause remanded for a new

Judgment r ever Bed.

Thornton, J., McKinstry, J., Sharpstbik, J., Mtriok, J.,
and McEee, J., concurred. Morrison, 0. J., took no part in the
decision of this cause.

People y. Bedinqbb.

(W CiJ. 200.)

Cfriminal law — appeal^^ eeeape.
Hie ooart will not entertain the appeal of an escaped prlnrnwr
/^(ONVIGTION of murder. The opinion states the oaaa.

Attomey-generaly for respondent
John C. Deuely for appellant

Thornton, J. The defendant was indicted for the minder o(
one James King, was tried in the District Court of Oolusa oountj^
under this indictment, and on the 16th of December, 1870, oon*
victed of murder in the first degree. The defendant moved for %


by Google

APRIL TERM, 1880. 33

People T. RediDger.

new trial, which was denied. The coart in due coarse pronounced
sentence of death by hanging. The defendant prosecuted an
appeal to this court, notice of the same haying been served on the
9th of February, 1880, and the cause was here for argument at the
session of May, 1880, held at the city of Sacramento.

When the cause was called for argument the attorney-general
(Hon. A. L. Hart) moved the court for an order dismissing the
appeal, on the ground that since the appeal was taken the defend-
ant had escaped from jail and was no longer in custody to abide
the sentence of the court. This fact is certified to the court by
the affidavit of John M. Steele, the sheriff of the county aforesaid,
in whose custody the prisoner had been since the conviction and
sentence above mentioned, who deposes under oath that the defend-
ant by stratagem and force, on the 5th day of April last, escaped
from the jail aforesaid, and was then at large. The affidavit bears
date the 19th day of May, 1880. Of the escape there is no denial.

The question is one of interest and importance, and is new in
this State, no case decided by any of its courts having been pro-
duced to us. Several cases were called to our attention on the
argument of this motion, and a reply has been made to the argu-
ment by John C. Deuel, Esq., on behalf of defendant, who, we are
informed, was authorized to appeal in this court as defendant's
counsel. An objection was taken by the attorney-general to any
one being heard for the defendant, on the ground that this court
ought not to recognize any one as counsel for him after he had vol-
untarily withdrawn himself from the jurisdiction of this court, and
the court in which the conviction was had and sentence pro-
nounced. However, a brief was allowed to be filed on behalf of
defendant, which has been since done.

In discussing the motion several cases were brought to our notice
by the attorney-general. We have examined these cases and others
not cited in the argument.

The earliest decision bearing on the point is in an anonymous
case in Maine (see 31 Me. 592), decided in 1850. It is thus re-
ported: '^A defendant had been tried and convicted upon an
indictment for an aggravated offense. He excepted, and was com-
mitted for want of sureties to appear at the law term, at which the
exceptions were to be heai*d. Meanwhile he escaped. His counsel
proposed to argue the exceptions. But the court declined to hear
the case until the defendant should be again in custody."
Vol. XXXVI— 5

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People V, Redlnger.

Shermcm v. Commonwealth was decided by the Virginia Court of
Appeals in 1868. See 14 Gratt. 677. In this ease Sherman was
convicted of a felony, and was sentenced to six years' imprisonment
in the penitentiary. He obtained a writ of error from the Court
of Appeals, which was directed to operate as a superseded to the
judgment While it was pending in the appellate court Sherman
broke jail and absconded. The attorney-general moved the court
for a rule upon the prisoner to show cause why the court should
not set aside the supersedeas, or postpone the hearing of the cause
until the prisoner should return to the proper custody* This order
was made, and the motion was afterward argued on behalf of the
Commonwealth and the plaintiff in error. The court adjudged
that so much of the order awarding the writ of error as directed it
to operate as a supersedeas be discharged^ and further ordered that
the writ of error be dismissed on the 1st of May next (1859),
unless it should be made to appear to the court on or before the
day above named that the plaintiff in error is in the custody of the
proper officers of the law. This judgment was afterwaini approved
by the same court in LefiwiclCs case, in which defendant had been
convicted of a felony. See 20 Gi*att. 723, decided in 1870.

The case tjited from Massachusetts, Conu v. Andrews^ 97 Mass.
543, was decided in 18G7. Andrews was convicted of receiving
stoWn property. He alleged exceptions, which were allowed, and
Was held in jail to piosecute. When the case was called in the Su-
pi^eme Court, the attorney-general suggested that the defendant
had broken jail, and was at large, and asked that he should be de-
fttsilted, and the exceptions overruled without argument.

The court heard argument on the motion by the counsel for de-
fendant, who stated (as appears fi*om the report) the points in his
behalf with force and clearness, and we would infer from what is
stated in the report, that Uie motion was elaborately argued by the
counsel who spoke for the defendant The court granted the mo-
tion. We insert here the bnef opinion:

" The defendant, by escaping from jail, where he was held for
tho purpose of prosecuting the exceptions and abiding the judg-
ment of the court thereon, has voluntarily withdrawn himself from
the jurisdiction of the court He is not present in person, nor can
he be heard by attorney. A hearing would avail nothing. If a
new trial should be ordered, he is not here to answer further; if the
exceptions are overruled, a sentence cannot be pronounced and exe-

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APRIL TERM, .880. 36

People V. Redinger.

cuted upon him. The attorney-general has a right to ask that he
should be present to receive the judgment of the court 1 Chit.
Crim. Law, 663 ; Rex v. Caudwelh 17 Q. B. 503.

" So far as the defendant has any nght to be heard under the
Constitution, he must be deemed to have waived it by escaping
from custody, and faihng to appear and prosecute his exceptions in
person, according to the order of the court under which he was
committed. Defendant defaulted. Exceptions overruled."

People V. Genet, 59 N. Y. 80 ; s. c, 17 Am. Rep. 315 (1874), is
also cited. In this case, the defendant had been convicted of a
felony, and upon this conviction was committed to custody to await
sentence pending an application for the settlement of * bill of ex-
ceptions. When this bill was presented for settlement, the court
declined to settle it, on the ground that the defendant had, since
the conviction, escaped from custody, had absconded, and was then
at large. An application was made to the Supreme Court for a
mandamus to comi)el the trial court to settle and seal the bill of
exceptions. The Supreme Court denied the application, and the
matter was brought on appeal before the Court of Appeals. This
court aflBrmed the order of the Supreme Court.

The Court of Appeals held it essential to any step, on behalf of a
person charged with felony, after indictment found, that he should
be in actual custody by being in jail, or constructively, by being let
to bail.

The court, per Johnson, J., said: "The whole thA)i7 of crim-
inal proceedings is based upon the idea of the defendant being in
the power and under the control of the court, in his person. While
the Constitution and the statute provide him with counsel, and
the statute gives the right of appearance by attorney in civil cases,
they are silent in respect to the representation of persons charged
with felony by means of an attorney; and m regard to those charged
with lesser offenses, the statutes permit them to bo tned in their
absence from court only on the appearance of an attorney duly au-
thorized for that purpose. This authority, it has been held, must
be special, and distinctly authorize the proceedings. People v. Pe-
try, 2 Hilt 525; People v. WtlkeSy 5 How. Pr. 105. Even in the ab-
sence of statutory regulations, this rule has been enforced in the
courts of the United States. Untied States v. Mayo, 1 Curt. 433.
In cnminal cases, there is no equivalent for the technical appear-
ance by attorney of defendant in civil cases, except the being in

Digitized by



People V. Redinger.

actual or constructive custody. When a person charged with felony
has escaped out of custody, no order or judgment, if any should be
made, can be enforced against him, and courts will not give their
time to proceedings which, for their effectiveness, must depend
upon the consent of the person charged with crime/' The opinion
ends with this remark: ** We think they'' (referring to the statutes
of New York giving to defendant a nght to make a bill of excep-
tions) " do not requiro the courts to encourage escapes and facili*
tate the evasion of the justice of the State, by extending to escaped
convicts the means of reviewing their couTiction.^

In Smith V. United States, 94 U. S. 97 (1876), the plaintiff in error
had been convicted of some offense (the report does not state the
offense), and had sued out a writ of error to the United States Su*
preme Court to have the conviction reversed. Afterward be es-
caped from custody. The cause was docketed m the Supreme Ooart,
December 29, 1870. It had been continued at every term up to the
time of the decision, for the reason that no one had appeared to
repi-escn t the plaintiff in error. At the October term, 1876, the court,
on motion, dismissed the wnt for want of prosecution, but rein-
stated it, on motion of counsel for the plaintiff, who moved to have
it set down for argument. The court denied the motion, and
ordered, that unless the plaintiff in error submitted himself to the
jurisdiction of the court below, on or before the first day of the next
term of the court, the cause is to be left off the docket after that
time. •

The court held in this case that it was between its discretion to
refuse to hear a criminal case in error, unless the convicted party
suing out the writ is where he ean be made to respond to any jadg-
ment it might render. It thus declared it, per Waite, C. J., '* In
this case, it is admitted that the plaintiff in error has escaped, and
is not within the control of the court below, either actually by being
in custody, or constructively, by being out on bail. If we affirm the
judgment, he is not likely to appear to submit to his sentence. If
we i-everse it, and order a new trial, he will appear or not, as he
may consider most for his interest. Under such circumstances, we
arc not inclined to hear and decide what may be a moot case.^ 94
U. S. 97.

In the Quee7i v. Caudwelly 17 Q. B. 503 (November, 1851), the de-
fendant had been convicted of perjury, and sentenced to seven yeanf
transportation. Pigott, for the defendant, was about to move for

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APRIL TERM, 1880. gl

People V. BediDger.

a new trial. It appeai'ed that the defendant was absent. Lord
Campbell, C. J., said: " The defendant must be in court'* Erle, J.,
concurred, and mentioned a like ruling by Lord Denkan in a case
where he (Erle) was for the defendant. Lord Campbell added:
**Tnis is peculiarly a case where the rule ought to be enforced, be-
cause the sentence has been passed on him, and is evaded by his
absence ; when he appears, you may renew your motion." He re-
ferred to Jiex V. De Beren^ei% 3 M. & S. 67.

The motion was not heai*d, on the ground that the defendant was
not forthcoming to meet his sentence. Campbell, C. J., Patteksok
and Earl, JJ., concurring.

See, also, the Queen v. Chichester y 17 Q. B. 504 (November 24,
1851), where, on motion for judgment against defendant, who had
suffered judgment to go by default on an indictment for nuisance,
and without laches of the prosecution, the defendant having gone
out of reach before iie could be served with notice to appeal* for
judgment, the court refused to pass sentence in his absence,
although It appeared that the removal of the nuisance, which was
to a public navigation, was important, and that the judgment of the
court was wanted to authorize the abating it. The court held that
the remedy was by process of outlawry.

In the case under consideration, has the defendant waived the
right to have his case considered and determined ? This was held
in so many words in the case from Massachusetts, Com. v. Andrews^
ut sujn-a^ and the same may be regarded as the rule laid down and
acted on in the Virginia cases, Sheintian^s case and LefiwicVa case,
%U supra. The detennination under the facts here presented, not
to hear the cases, was considered within the discretion of the court
— the discretion to be exercised to be a judicial discretion within
limits defined by law. In Genet's case, 59 N. Y. 80; s. c, 17 Am,
Rep. 315, the right to have a bill of exceptions settled was held not
10 exist on behalf of an escaped convict. In the case in Maine (31st
id.), the court refused to hear the argument. And in the case from
New York (59tli id.), the right to be represented by counsel guar-
anteed both by the Constitution and statute to defendants in cases
of felony, is held not to exist when the defendant is not actually
or constructively in custody, so that the sentence of the court can
be enforced when pronounced. An exception to that rule is referred
to in the opinion, as to offenses less than felony.

The provision of the Constitution in this State, both in the first

Digitized by



People V. RediDger.

Constitution and that recently adopted, as regai*ds this right, is
**to appcaf and defend m person and with counsel." The former
Constitution had apj^^ended to this provision, **as in civil actions.'*
That is omitted in the instrument of 1879. The language is sug-
gestive, and indicates that tho party charged is not allowed to
appear and defend by counsel, but with counsel — the person act-
ing as counsel to be present with the defendant, and not without
liini. In these words it seems as. if the power to appear and defend,
at least in a case amounting to felony, does not exist in the counsel
at all in the absence of the defendant.

This view seems to be sustained by the statute of this State, and
to be derived from a history of the law regarding counsel in crim-
inal cases.

The history of the law as regards capital cases will be found in
Blackstone's Commentaries. See book 4, 355-C. This author
seems to doubt whether it was not allowed by the ancient law of
England, and cites the Mirror, chap. 3, § 1. In a note it is said
that the right of counsel to plead for them was first denie<l to pris-
oners by a law of Henry I, chap. 47-8, which is construed as an
erroneous interpretation of the law. However, tins author states it
as a settled rule at common law that no prisoner should be allowed
a counsel upon his trial on the general issue in any capital crime,
unless some point of law arose winch was proper to be debated.
This denial was on the ground that the judge was counsel for the
prisoner — a right of but little worth when a Jeffries or a Scroggs
presided. The privilege was only accorded in the case of State
criminals by the statute of 7 William III, chap. 3. ProlTatt's Jury
Trial, § 205. This statute applied to all cases of such high treason
as worked corruption of the blood, misprision of treason, except
treason in counterfeiting the king's coin or seal, and such prison-
ers were allowed to make their full defense by counsel, not exceed-
ing two, to be named by the prisoner, and appointed by court
or judge. The same indulgence was extended by statute 20 George
III, chap. 30, to parliamentary impeachments for high treason,
** which," says Blackstone, " were excepted in the former act." 4
Bl. Com. 356.

Prisoners under a capital charge, whether for treason or felony,
upon issues which did not turn on the question of guilty or not
gnilty, biiL ou collateral facts, always were entitled to the full

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APRIL TERM, 1880. 39

People T. Redinger. .

assistance of counsel. Fost. 42, 232; Ohitty's note on page above
cited from Bl. Com.

In misdemeanors the defendant was always allowed counsel as in
civil actions. 4 BL Com. 356. In all cases' of felony defend-
ant^ by statutes 6 and 7 William IV, chap. 114, § 11, are allowed

It will be observed from the above that Blackstone refers to
prisoners as being allowed counsel to appear and defend. He no-
where speaks of any such allowance to persons not in custody.

How far is the right secured to persons convicted or charged
w]th public offenses by the statute law of this State ? See §§ 858,
859, 987, 1093, 1095, 1254 of the Penal Code.

It is apparent from an examination of the above sections that
this right is confined to persons charged with a public offense only
when in custody. In fact courts have no jurisdiction over persons
charged with crime, unless in custody actual or constructive. It
would be a farce to proceed in a criminal cause unless the court bad
control over the person charged, so that its judgment might be
made effective. It is true that an indictment may be found against

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 8 of 123)