
    Charles Fight v. The State.
    "Where pending a trial upon a criminal prosecution, the accused, being on bail,, absconds, it is legal to proceed with the case, and to receive a verdict of guilty in his absence.
    An indictment charging that the defendant uttered, in payment, counterfeit, coins, “ made and counterfeited to the likeness and similitude of the good, true, and current money and silver coin, currently passing in this state,, called 1 Spanish dollars,’ is good,” but must be sustained by proof.
    The writ of error in this casé was made returnable to the court, in bank. The facts, as they appear in the record, are these r The grand jury of the county of Brown, at the August term of the-court of common pleas, 1834, returned a bill of indictment against the plaintiff, for uttering counterfeit coin, currently passing in this state, called Spanish dollars, knowing it to be counterfeit. The plaintiff was arraigned at the same term, plead not guilty,, and on his motion, and giving security, the prosecution was continued. On the fourth day of the succeeding November term the-plaintiff was placed on his trial before the jury, and the testimony being partly heard, the court adjourned until the next morning,. November 5th, at which time the court again met, and the prosecuting attorney appeared in behalf of the state, but the plaintiff being called made default. The court then, on motion, issued a. bench warrant fpr the plaintiff, and proceeded to charge the jury. The jury retired, and on the next day, November 6th, came into court with a verdict of guilty, which was received by the court in the absence of Fight. At the March term, 1835, Fight appeared in court and moved for a new trial, and assigned the following as ■■ reasons:
    *1, That the proceedings had, on the trial, at the last term, were irregular and contrary to law. 2. The verdict was contrary to law and evidence, and should have been for the said Charles Fight, and not against him. 3. The jury heard only apart of the testimony. 4. The verdict was brought into court in the absence of said Charles Fight. 5. The said Charles Fight was-three times,called to come into.court, but made default, and his-recognizance was forfeited. 6. After the forfeiture of the recognizance, and when the said Charles Fight was absent, the jury brought in their verdict against him. The court overruled this motion, and Eight then moved in arrest of judgment, and assigned the following reasons:
    1. It appears the court, after having heard a part of the testimony, on the trial of the ease, adjourned without making any disposition of the jury. 2. That the third count in the indictment is insufficient, because it charges the coin attempted to be passed to be in the likeness and similitude of Spanish dollars, which are not current coin in this state. Several other points were made in this motion, but, like the first, do not present objections to the proceedings appearing on the record, and are not deemed necessary to be again stated. The court overruled this motion in arrest of judgment, and sentenced the plaintiff to imprisonment in the penitentiary for three years.
    Morris, for the plaintiff in error.
    Jolliefe, prosecuting attorney, for the state.
   Opinion of the court, by

Judge Wood :

The plaintiff seeks to reverse the decision and judgment of the court of common pleas, and has assigned for error, its opinions on both the motions for a new trial, and in arrest. Bid the court of common pleas err ? We have endeavored to consider the case with that deliberation a due regard to the rights of the plaintiff required of us; and if our investigation-had led us to doubt the correctness of the proceedings of the common pleas, it would be no less our pleasure than our duty to give him the full benefit of such doubts. No man should be brought within the energies of the criminal law, and subjected to its penalties, but upon full and deliberate ^conviction that he has violated its principles, but when such conviction is forced on the mind, it is to be borne in recollection that the community has its claims, and while innocence should be protected, guilt should be certain to receive its reward. The record is prolix. It shows that every point was contested with much zeal and perseverance before the court of common pleas. We have reviewed the whole case, and it appears to us there are but two questions arising on the record to be determined worthy of a moment’s consideration; and they, only, will be noticed. 1. Where a prisoner is let to bail, put on his trial and absconds during its progress, is it error to proceed with the trial, and receive the verdict in his absence? 2. Is the description of the counterfeit coin, as “ Spanish dollars,” sufficient?

In England, in misdemeanors, where the defendant is on bail, a trial, conviction, and sentence may be had in his absence. He is present or not, at his option. In felonies, a different rule, it is true, prevails. The accused must be present, when every principle of the law is discussed and determined in which he is concerned. The reason of this difference in the mode of proceeding in the two cases can not, perhaps, at this time, be satisfactorily ascertained ; or rather, no satisfactory reason can be given for it. A prisoner, in close custody, may be so easily oppressed and deprived of his rights, and it would be so extremely difficult for him to make known his injuries, and obtain redress, that to prevent unnecessary restraint, and to afford the accused an opportunity of being fully and fairly heard, the rule in reference to him may be reasonable and salutary; but it would apply with force to all classes of offenders. But in felony, the accused is not necessarily confined within the four walls of the prison. Both be.fore and after the conquest, all felonies were bailable by the an- • cient common law. (Stat. Westm. 1 and 3 Edward I./ c. 15; :23 Henry Till., c. 9, and 1 and 2 Phil, and Mary, c. 13), except 'treason, murder, and certain other crimes from those for which 'the king’s justices may bail.. 4 Bl. Com. 268. But the court of ¡king’s bench, or any judge thereof in vacation, may, at their disoretion, admit persons to bail, in all cases whatsoever, 3 East, 163; .5 Johns. 169 ; but none can claim this benefit de jure, 2 Hale, 129. .If on bail, I apprehend, neither the courts in Great Britain, nor •the Uni ted States, would proceed to impanel a jury, in a trial for felony, ^unless the accused were present, to look to his challenges. If the trial, however, is once commenced, and the prisoner in his own wrong leaves the court, abandons his case to the management of counsel and runs away, I can find no adjudged case to sustain the position, that, in England, the proceedings would be stayed. Such a case must form an exception to the general rule, and the verdict may be legally received in the absence of the accused. The prisoner can not be deprived of his right to be .present at all the stages of his trial; but that he must be, under ..all circumstances, or the proceedings will be erroneous, can not, ■w.e think, be sustained.

2. Is the indictment sufficient? The statute on which this indictment is framed, is section 28 of “an act for the punishment of crimes.” It reads thus, “ that if any person shall counterfeit any of the coins of gold, silver, or copper, currently passed in this state, or shall utter or pút off ány such counterfeit coin or coins, knowing them to be such,” etc. The words of the indictment are, “that the said Charles Fight,” etc., “four pieces of false and counterfeit money and coin, made and counterfeited to the likeness and similitude of the good, true, and current money and silver coin, currently passing in this state, called Spanish dollars'' etc., “ did utter and tender in payment,” etc., “ and put off.” The plaintiff objects to this averment, because the coin is called Spanish dollars, which he contends are not money current in this state. This,'in our view, was a fact exclusively for the jury, whether there was such coin as is called Spanish dollars, and whether it was currently passed in this state ; and the jury having found these facts, it is far from our duty to disturb the decision of the court of common pleas, in refusing to grant a now trial, especially íd the absence of the testimony on which that court acted, and which is not contained in the record; and it surely forms no ground for reversing the decision of that court for refusing to sustain the motion in arrest. Judgment affirmed.-  