Arbuckle v. State
| Decision Date | 30 November 1901 |
| Citation | 80 Miss. 15,31 So. 437 |
| Court | Mississippi Supreme Court |
| Parties | HENRY ARBUCKLE v. STATE OF MISSISSIPPI |
FROM the circuit court of Tallahatchie county. HON. FRANK E LARKIN, Judge.
Arbuckle the appellant, was indicted and convicted of manslaughter in the circuit court of Tallahatchie county, the charge being that he killed, unlawfully, willfully and feloniously, one George Newton, in said county, January 17, 1900. He was convicted, sentenced to the penitentiary for two years, and appealed to the supreme court. The principal contention in the supreme court for a reversal of the judgment was predicated of the fact that the record failed to show that appellant was arraigned on the indictment and plead thereto in the circuit court.
The statutes commented upon in the opinion of the court, and ordered published in this report, are as follows:
Section 3, art. 7, code 1857, p. 573:
Laws 1878, p. 200: "Be it enacted by the legislature of the state of Mississippi, that § 2884 of the code of 1871, be amended by adding thereto the following: 'Nor shall any judgment be reversed in the supreme court in any case because of a failure of the court below to ask the accused what he had to say why the sentence of the law should not be passed upon him; nor shall any verdict or judgment be reversed or annulled in the supreme court because the transcript of the record in said court fails to show a proper organization of the grand jury, or fails to show that the prisoner was present in court during the trial, or during any portion thereof, nor for any errors or omissions occurring before sentence which might have been taken advantage of in the court below, and which shall not have been so taken advantage of, unless said transcript shows that these errors and omissions were taken advantage of by motion or otherwise in the lower court; and when said motions are made in the lower court, it shall always be competent for the court to amend any improper entries or supply any omissions, so as to make the record conform to the facts as they occurred.'"
Section 1433, code 1880: "No judgment in any criminal case shall be reversed because the transcript of the record does not show a proper organization of the court below or of the grand jury, or that the prisoner was present in court during the trial, or any part of it, or that the court asked him if he had anything to say why judgment shall not be pronounced against him upon the verdict; nor shall any such judgment be reversed, because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made a ground of special exception in such court."
Section 4370, code 1892: "A judgment in a criminal case shall not be reversed because the transcript of the record does not show a proper organization of the court below or of the grand jury, or where the court was held, or that the prisoner was present in court during the trial or any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, unless the record show that the errors complained of were made ground of special exception in that court."
Affirmed.
William C. McLean, for appellant.
The record in the cause shows that the defendant was not arraigned in the court below.
It therefore follows that the trial and judgment was an absolute nullity, and that a new trial must be awarded. McQuillen v. State, 8 Smed. & M., 587; Wilson v. State, 42 Miss. 639; Cachute v. State, 50 Miss. 165; Stanford v. State, 76 Miss. 257. The record in the McQuillen case was identical with the record in this cause. It was held in that case that it was not permissible for the clerk to make any entry of what had transpired at a former term, and this ruling has been repeatedly affirmed by this court in the above cited causes; also in Pond v. State, 47 Miss. 41; in Wilson v. State, 42 Miss. 639, the point is expressly made and decided that "a person charged with the commission of felony cannot waive his arraignment."
Monroe McClurg, attorney-general, for appellee.
The controlling complaint here, and for the first time in this court, is that the clerk failed to make an entry on the minutes of the arraignment and plea of the accused. At a subsequent term, when the accused was put upon trial, an order made by the court recites that he had been arraigned an entered his plea of not guilty at a former term. It is not a case of failure to arraign, nor of neglect or refusal to plead, provided for in § 1407 of the code, but a clerical omission to make a minute of what appears to have been done, and is cured by § 4370 of the code.
No doubt the very cases which counsel cites were potent factors in bringing into the code of 1880 a change of the rule found in previous statutes. This point disposed of, it is respectfully submitted that whatever irregularities may be found in the trial, there are none of sufficient importance to warrant a reversal of the circuit court judgment.
McQuillen's case, Wilson's case, Cachute's case and Pond's case, cited by counsel, were decided under the code of 1857.
In Spivey's case, the record failed to contain a transcript of the indictment. This court said: "The effect of this legislation, code 1892, § 4370, is to establish the presumption in the supreme court, in every criminal case, that the judgment is correct, and it must be affirmed unless the appellant shall show that he made complaint of it in the court below in the particular matter wherein he assigns error in this court." Approved in Fleming's case, 60 Miss. 434, where no exceptions were reserved to any ruling of the court. This is unquestionably the rule; nothing short of an affirmative showing, as in Hunt's case, 61 Miss. 577, that there was no omission. The court will notice that the recital in the transcript now before us, that the defendant had been arraigned and pleaded not guilty at a former term, was not a mere formal entry by the clerk, but an order made by the court. Of course the court could not have the omitted entry entered nunc pro tunc, but it was within the power of the court to make the record of the trial term show affirmatively that it was merely an omission which occurred during a former term. Lea's case, 64 Miss. 201; Burnett's case, 72 Miss. 994.
Argued orally by Wm. C. McLean, for appellant, and Monroe McClurg, attorney-general, for appellee.
We think § 4370 of the code of 1892 covers the character of objections made here as to the arraignment. No objection of any kind was made in the court below on the ground that the record showed no arraignment or plea of not guilty. Such failure to show arraignment and plea is cured by the failure to object in the court below. It was competent for the legislature to provide that the failure to object on the ground that there was omission in the record to show any fact not jurisdictional should preclude the appellant from making the point here, but it was not competent for the legislature to provide that the failure in the record to state jurisdictional facts might be so cured. Therefore we disapprove and overrule the declaration in Hunt v. State, 61 Miss. 577, that no case can be reversed in this court by reason of omission in the record to show jurisdictional facts. Arraignment and plea are not jurisdictional. They are mere steps in the process of the trial of the case, which the circuit court had full jurisdiction to try. We refer specially to three cases (People v. Bradner, 107 N.Y. 1, (13 N.E. 87); Spicer v. People, 11 Ill.App. 294; and Long v. People, 102 Ill. 331--the last especially) to show that arraignment and plea are not jurisdictional.
In People v. Bradner the court say: ...
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