Parkinson v. People

• Decision Date: 26 November 1890
• Citation: 135 Ill. 401,25 N.E. 764
• Parties: PARKINSON v. PEOPLE.
• Court: Illinois Supreme Court

135 Ill. 401

25 N.E. 764

PARKINSON

v.PEOPLE.¹

Supreme Court of Illinois.

Nov. 26, 1890.

Error to criminal court, Cook county.

Samuel W. Jackson, (Mills & Ingham, of counsel,) for plaintiff in error.

George Hunt, Atty. Gen., for the People.

BAKER, J.

Parkinson, the plaintiff in error, was indicted, tried, and convicted upon a charge of rape and sentenced to imprisonment in the penitentiary for a term of years. Motions for a new trial and in arrest of judgment were severally made and overruled, and exceptions taken.

It is shown by the record that the defendant was furnished with a copy of the indictment, and with lists of the names of the jurors and of the witnesses for the prosecution, and that thereupon a jury was impaneled and sworn to try the issue in the cause, and a witness for the prosecution sworn, and her examination commenced; that it was then suggested that no plea had been entered in the case, whereupon the defendant was arraigned and pleaded not guilty, and the trial was then proceeded with. The motion in arrest was based upon the facts above stated. The arraignment and plea of the defendant should be the first steps in the progress of a trial upon an indictment for a felony. They are essential to the formation of an issue to be tried by a jury. Where there is no issue, there is nothing to be tried, and nothing upon which the verdict of a jury or judgment and sentence of a court can properly be predicated. The statute (1 Starr & C. St. c. 38, div. 13, § 3) provides: ‘Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare orally, by himself or his counsel, that he is not guilty, which plea shall be immediately entered upon the minutes of the court by the clerk; and the mention of the arraignment and such plea shall constitute the issue between the people of the state and the prisoner.’ The formalities once attendant upon the arraignment of a prisoner are not now required; and it is sufficient if that which is done amounts, in substance, to an arraignment. Fitzpatrick v. People, 98 Ill. 260;Goodin v. State, 16 Ohio St. 344. But there must be a plea; and if a trial is had and no plea of any kind is interposed and shown by the record, it is reversible error. Johnson v. People, 22 Ill. 314;Aylesworth v. People, 65 Ill. 301; Yundt v. People, Id. 372; Hoskins v. People, 84 Ill. 87;Gould v. People, 89 Ill. 216. If, as matter of fact, there is an arraignment and plea prior to the impaneling of the jury, but a failure to make a minute of the same, a record thereof may be made, by order of the court, nunc pro tunc. 1 Starr & C. St. c. 38, div. 13, § 3; Long v. People, 102 Ill. 331. But in the case at bar there was no arraignment or plea until after the jury was sworn to try the case and the trial actually begun. Nor after an issue was formed by the interposition of a plea was any attempt made to cure the defect and error by having the jury duly sworn to try such issue. Did the arraignment made and plea interposed pending the trial purge the record of manifest error? Both reason and the authorities answer this question in the negative. In State v. Hughes, 1 Ala. 655, a jury was selected and sworn to pass upon the guilt or innocence of the prisoner, and thereafter the prisoner was arraigned upon the bill of indictment and entered a plea of not guilty. The judgment was reversed. The court said: ‘This proceeding cannot be sustained without a wide departure from established usage. We think it clear that the case must be put in a condition for trial before the jury is sworn. Such is the settled course of procedure, according to the most accurate writers upon criminal law. The idea of selecting and swearing a jury to try a cause which in its progressive steps has not reached the stage when...