
    PURCELL vs. COMMONWEALTH.
    Where the record did not show that a prisoner convicted of manslaughter was in Court when sentence was pronounced, all proceedings subsequent to the arraignment and plea were set aside.
    Error to the Court of Oyér and Terminer of Schuylkill County. No. 77 July Term, 1853.
    This was an indictment against Patrick Purcell et. al. for murder and manslaughter. On this indictment Patrick Purcell and John Canfield were tried and convicted of manslaughter. The record sets forth as follows: “14 Sept. 1852, John Canfield and Patrick Purcell being arraigned plead not guilty et de hoc, &c. District Attorney similiter aud issue. Same day jury called, empanelled and sworn. 16 Sept., 1852, at a quarter before 7 o’clock p. m. the jury having agreed upon their verdict find Patrick Can-field and John Canfield guilty of manslaughter in manner and form charged in the 3d and 4th counts of the indictment and not guilty on the other counts. Same day the Court sentenced John Canfield to undergo an imprisonment at solitary confinement at labor in the Schuylkill County prison, for the period of two years from this date, that he pay the costs of prosecution and stand committed until this sentence be complied .with.”
    Purcell then took a writ of error, assigning the following error: “That it does not appear from the record that the prisoners were in Court at any time after the arraignment either during the trial, at the rendition of the verdict, or at the passing of the sentence; or that they were asked if they had anything to say, why sentence should not be passed upon them.”
    An examination of the record showed that the error assigned existed.
    
      Thomas H. Walker and Howell Fisher, Esqrs., for plaintiff in error argued that:
    the record must show that the prisoners were in Court in felonies that were once capital by Act of Assembly from the commencement of the trial, until the passing of the sentence. 4 Blackstone’s Comm. Appendix 1; Jacobs vs. Commonwealth, 5 S. & R. 317; Dunn vs. Commonwealth, 6 Barr, 384; Hamilton vs. Commonwealth, 4 Harris, 129; Prine vs. Commonwealth, 6 Harris, 103.
    “By the 2nd section of the Act of 31st March, 1718, (which is the ground work of our penal code) it is provided that the inquiry of all petty treason and misprisions of treasons, murder, manslaughter and homicide, and all other crimes and misprision as by this, or by any other Act of Assembly are or shall be capital or felonies punishable with death which have been or shall be done in this province, shall be as by this Act directed.”
    And the 4th section provides that upon all trials ■ of the said capital crimes the prisoners shall have peremptorily challenges and in effect all the privileges incident to trial for a capital offence. Every felony, which at any time by Act of Assembly was punishable with death, is still considered as a capital ofience as far as' regards the’ course of the trial, although capital punishment be now taken away from every crime except murder in the first degree.” Jacobs vs. Commonwealth, 5 S. & R. 317.
    The prisoners must be present in Court, when sentence is passed, and they must be asked why sentence should not be passed upon them. The omission of this is fatal: Dunn vs. Commonwealth, 6 Barr, 384; Hamilton vs. Commonwealth, 4 Harris, 129.
    The record of this sentence does not show that the prisoners were present, nor is its language such as would be addressed to persons present; but on the contrary it is the natural language that would be used in recording a sentence passed in the absence of the prisoners.
    The record does not even show as in Hamilton vs. Commonwealth, 4 Harris, 129, that the prisoners were brought into Court for sentence, no mention of their presence whatever being made after the 14th September, four days previous to the passing of the sentence, and two days having expired since the rendition of a verdict. During this time they were necessarily absent.
    As to the allocatur — there is nothing whatever on the record from which an inference can be raised, that the essential requisite of the law was complied with: Rex vs. Geary, 2 Salk., 632; King vs. Speke, 3 Salk., 620.
    If the prisoners be guilty, the ends of justice will not be defeated by a reversal. They will be remanded to answer another indictment: Prine vs. Commonwealth, 6 Harris, 103.
    The question then is will the Court allow this record to stand, which manifestly shows that the prisoners were deprived of their inherent and inalienable rights, when the only consequence to the Commonwealth might be the costs of a new trial.
    
      Robert M. Palmer, Esq., contra.
    
   The Supreme Court reversed the judgment of the Court below on July 27, 1853, in the following opinion :

Per Curiam.

All proceedings subsequent to the arraignment and plea are reversed for the reasons assigned in the argument of the plaintiffs in error; and the record is removed to the Court below for further proceedings according to law.  