Brown v. State

• Decision Date: 06 February 1926
• Docket Number: A-5276.
• Citation: 242 P. 1065,33 Okla.Crim. 217
• Parties: BROWN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

242 P. 1065

33 Okla.Crim. 217

BROWN v. STATE.

No. A-5276.

Court of Criminal Appeals of Oklahoma

February 6, 1926

Syllabus by the Court.

In a criminal action, a defendant by silence may waive the benefit of a statutory provision, and announcing ready for trial and going to trial without objection waives arraignment and plea.

Where the defendant appears in person and by counsel, at the time assigned for trial, and announces ready for trial, this constitutes a waiver of arraignment and right to enter plea.

Where the record merely recites that, after the jury was duly impaneled and sworn, the prosecuting attorney made the opening statement of the case, it will be presumed that he read the information and stated the plea of the defendant to the jury as provided by statute.

When the defendant announces ready for trial, and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the information can be sustained.

In a prosecution for abandonment of wife and minor children evidence held to sustain a conviction. Held further, that no prejudicial error is shown by the record.

Additional Syllabus by Editorial Staff.

Information based on Sess. Laws 1923, c. 78, § 2, for abandonment of wife and minor children, was not duplicitous as charging two offenses, and, attack not being made on it on such ground by demurrer, in view of Comp. St. 1921, §§ 2608, 2616, such question was not presented by record on appeal.

Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.

John H Brown, convicted of abandonment of wife and minor children, appeals. Affirmed.

M. D. Hartsell, of Muskogee, for plaintiff in error.

The Attorney General, for the State.

DOYLE J.

The information, filed in the district court of Muskogee county, January 15, 1924, charges that John H. Brown in said county, "on the 6th day of December, 1923, did knowingly, willfully, unlawfully, wrongfully, and feloniously, and without good cause abandon his wife, Mary Brown and six minor children, under the age of 15 years, to wit: Wanda Brown, Arnold Brown, Glen Brown, Owen Brown, Jeanetta Brown, and John Brown, and has willfully refused and neglected to maintain and provide for his said wife, Mary Brown, and their said children, contrary to," etc.

A trial was had thereunder; the defendant was found guilty as charged in the information, the jury leaving the punishment to the court. Motion for new trial was duly filed and overruled. The court sentenced the defendant to be confined in the state penitentiary for a term of 5 years.

In support of the contention of counsel that the judgment should be reversed, a number of errors are assigned and argued. The first is that the court erred in submitting the case to the jury without first having the defendant arraigned and requiring him to plead to the information.

The record shows that on March 25, 1924, the case was set for trial April 4, 1924; that on said date the defendant appeared in person and by his attorney, M. D. Hartsell, and, the state and the defendant each having announced ready for trial, thereupon jury was duly impaneled and sworn for the trial of the case. The prosecuting attorney made the opening statement of the case. Mary Brown, the first witness for the state was called and sworn, thereupon the defendant objected to the introduction of any testimony on the part of the state for the reasons following: That the information does not state facts sufficient to constitute a public offense; "that the defendant herein, has never been arraigned, has never entered a plea herein, has never waived formal arraignment herein, and has never waived his right to plead in this action." This objection the court overruled; exception reserved.

Under our Code of Criminal Procedure:

"The only pleading on the part of the defendant is either a demurrer or a plea." Section 2606, C. S. 1921.

"There are three kinds of pleas to an indictment or information. A plea of:

First. Guilty.

Second. Not guilty.

Third. A former judgment of conviction or acquittal of the offense charged, which must be specially pleaded, either with or without the plea of not guilty." Section 2617, Id.

Every plea must be oral, and must be entered upon the minutes of the court. "The plea of not guilty puts in issue every material allegation in the indictment or information." Section 2622, Id.

"The jury having been impaneled and sworn, the trial must proceed in the following order:

First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with." Section 2687, Id.

In the absence from the record of the opening statement of the case as made by the county attorney, it will be presumed that he read the information and stated the plea of the defendant to the jury as provided by statute. The record shows that the defendant was represented by competent counsel, that he voluntarily announced himself ready for trial, and that the case was treated as at issue upon a plea of not guilty, and the defendant was accorded every right that he could have availed himself of under the most formal entry of his plea. If the defendant had not been arraigned and did not enter his plea, knowing this formal defect in the record, he took the chance of an acquittal, which would have barred further prosecution. The conviction will have the same effect.

In Martin v. Territory, 14 Okl. 598, 78 P. 88, cited by counsel for the defendant in support of his contention, it is said:

"A defendant, under the statute, has a right to plead to the indictment or accusation. He should be permitted to choose what defense he will make, but the right to do this is conferred upon the defendant for his benefit, and in exercising this privilege he is required to act in good faith. He cannot sit quietly by and say nothing about his failure to plead until after the verdict, and then complain. The necessity of a formal plea to an indictment is not a constitutional requirement, and, while it was a part of the procedure at common law, in this territory, it is statutory, and it is now well settled that a statutory right may be waived even in capital cases. If the

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