
    The People of the State of New York, Respondent, v. William Miller, Appellant.
    
      Misdemeanor■—right of the accused, to appear by counsel —his right to absent himself.
    
    Where a person charged with a misdemeanor executes a recognizance, conditioned that he “shall appear and answer the charge above mentioned, in whatever Court it may be prosecuted, and shall at all times render himself amenable to ■ the order and process of the court; and, if convicted, shall appear for judgment and render himself in execution thereof," and when his case is called for trial he fails to appear in person but is represented by counsel who states that his client is sick and that he has a written authorization to proceed with the trial in his absence, it is error for the court to refuse to proceed with the trial, and to declare the recognizance forfeited — certainly without giving the defendant an opportunity to attend in person.
    
      Quaere, whether section 356 of the Code of Criminal Procedure, providing that the trial for a misdemeanor may be had in the absence of the defendant if he appear by counsel, gives the defendant an absolute right under all circumstances to refuse to appear for trial.
    O’Brien, J., dissented.
    Appeal by the defendant, William Miller, from an order of the Court of Special Sessions of the Peace of the city of New York, entered in the office of the clerk of said court on the 28th day of February, 1899, forfeiting a recognizance. . • . .
    
      
      Louis Spiegel, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   Patterson, J.:

From an order forfeiting a recognizance made at a Gourt of Special Sessions in the city of ¡New York the defendant appeals. The record before us discloses that the defendant was charged with violating section 388 of the Penal Code of the State of ¡New York by keeping and maintaining a place where opium was smoked. He was arraigned before a city magistrate and was held to bail in-the-sum of $300. He and his surety executed an undertaking in that sum, and in that instrument it is provided that he and his surety do jointly and severally undertake “that the above named William Miller shall appear and answer the charge above mentioned, in whatever Court it may be prosecuted, and shall at all times render himself amenable to the order and process of the Court; and, if convicted,, 'shall appear for judgment and render himself in execution thereof or, if he fail to perform either of these conditions, that we will pay to the People of the State of ¡New York the sum of Three hundred dollars.”

The record before us shows that on the 28th of February, 1899, the case against the appellant was called for trial; he was not present in person, but was represented by his counsel, who stated that he had a written authorization from his client, the defendant, who-was absent in consequence of sickness, to proceed with the trial in the absence of the defendant. The district attorney objected tO' going on with the trial in the defendant’s absence and moved for a, forfeiture of the bond and asked that a bench warrant be issued. The presiding justice voted to deny the motion, but the majority of the court granted it and the bond was forfeited and a bench warrant was issued.

It appears that the defendant’s counsel announced that he was ready for trial, but the trial was not proceeded with, and no trial was had. The district attorney called the name of the defendant, who did not respond, and then moved for the forfeiture of the bead, stating, among other'things; as a reason, that he did not want a precedent established that keepers of disorderly houses and opium joints may appear in the Special Sessions by counsel and absént themselves. The defendant’s counsel excepted to the forfeiture of the bond and to the declination .of the district attorney and the majority of the court to try the case.

The Court of Special Sessions was without authority to order the forfeiture of this recognizance. The defendant was entirely within his right to appear in court by counsel. The appearance by counsel was his own appearance, and on the day fixed for the trial his personal attendance was' unnecessary for it had not been required. It is provided by section 356 of the Code of Criminal Procedure that a trial for a misdemeanor may be had in the absence of the defendant if he appear by counsel. By section 297 of that Code it is provided that the personal appearance of a person charged with a misdemeanor upon arraignment is unnecessary and he may appear upon the arraignment by counsel. Upon a trial a verdict may be rendered in the absence of a person indicted for "a misdemeanor. (Code Crim. Proc. § 434.)

It is unnecessary to determine now whether the provision of section 356 of the Code of Criminal Procedure gives an absolute right to a defendant charged with the commission of a misdemeanor under all circumstances to refuse to appear in person for trial. This defendant had the right to believe that his personal presence was unnecessary. If the court required Ms presence at a trial an opportunity should have been given him to be present, and an order should have been made requiring him to attend in person.

The forfeiture of the recognizance in this case was purely arbitrary. It was directed without any previous requirement by the court that the defendant attend personally, and the order should be 'reversed.

Van Brunt, P. J., Ingraham and Laughlin, JJ., concurred ; O’Brien, J., dissented.

Order reversed.  