Allyn v. State

• Decision Date: 08 June 1887
• Citation: Allyn v. State, 21 Neb. 593, 33 N. W. 212 (Neb. 1887)
• Parties: ALLYN v. STATE.
• Court: Nebraska Supreme Court

21 Neb. 593

33 N.W. 212

ALLYN

v.STATE.

Supreme Court of Nebraska.

June 8, 1887.

Syllabus by the Court.

Where a defendant is put on trial for a misdemeanor without a plea to the indictment having been entered, it is a mere technical error or irregularity which does not affect any of his substantial rights, and affords no ground for reversal of a judgment of conviction. Vide State v. Hayes, 24 N. W. Rep. 575.

The fact that a defendant was acting as the agent of another in the commission of an offense will afford no excuse or justification for the act in a prosecution therefor.

Error from Dawson county.

C. W. McNamar, for plaintiff.

The Attorney General, for defendant.

REESE, J.

Plaintiff in error was indicted for maintaining a nuisance. The trial resulted in a verdict of guilty, and a fine of $50 was imposed. From that judgment he prosecutes error. There are two principal questions presented for decision.

1. The record fails to show that plaintiff in error was arraigned, or that he entered any plea to the indictment, or waived arraignment. It is claimed that the trial, in the absence of such plea or waiver, was erroneous, and that a new trial should be granted for that reason. It must be conceded that at common law, both in England and this country, it is almost universally held that the trial of a party charged with a crime, without plea, is erroneous. But, under our system of criminal jurisprudence as established by the Code, the rule seems to be pretty well settled that the omission to enter a plea to the indictment, especially in prosecutions for misdemeanors, is not necessarily fatal where the whole case was tried upon its merits as upon a plea, and where the party has not been deprived of any of his substantial rights.

In State v. Greene, 23 N. W. Rep. 154, REED, J., in writing the opinion of the court, says: “Treating the proceeding as a trial of the defendant on the accusation contained in the indictment, the action of the court in putting him upon trial without a plea having been entered was a mere technical error or irregularlty, which in no manner affected any of his substantial rights. The fact that no plea had been entered was overlooked by the court and district attorney, through inadvertence, no doubt. The case was treated, however, at every stage of the proceeding, and by all of the parties, as though a plea had been entered. The allegations of the indictment were all regarded as denied by the defendant. The state was required to establish the charge in the indictment by the same character of evidence, and with the same certainty, which would have been required if the formal plea of not guilty had been entered.” The conviction was sustained.

In Maxwell's Criminal Procedure, at page 541, the author says: “A party who personally and by his consent goes into court, practically on a plea of not guilty, should not, after verdict, be permitted to...