Browning v. State

• Decision Date: 17 March 1898
• Parties: BROWNING v. STATE.
• Court: Nebraska Supreme Court

54 Neb. 203

74 N.W. 631

BROWNING

v.STATE.

Supreme Court of Nebraska.

March 17, 1898.

Syllabus by the Court.

1. A judgment of conviction of felony cannot stand where there was no arraignment of, and plea by, the accused before the trial.

2. Allyn v. State, 33 N. W. 212, 21 Neb. 593, distinguished.

3. When it is discovered during the trial on the charge of a felony that there has been no arraignment and plea, the court should not proceed with the trial without arraigning the accused, entering his plea, and causing the jury to be resworn, and the witnesses to be re-examined.

Error to district court, Gage county; Stull, Judge.

C. H. Browning, convicted and sentenced for burglary, brings error. Reversed.L. W. Colby, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

NORVAL, J.

This was a prosecution by information filed in the court below by the county attorney, charging the prisoner with the crime of burglary. Upon the trial the accused was found guilty. A motion for a new trial, and also a motion in arrest of judgment, were filed and overruled, and he was sentenced by the court to imprisonment in the penitentiary for a term of years. A reversal is asked because the defendant was not arraigned, and no plea was entered to the information by him, or in his behalf, prior to the commencement of the trial. This court held, in Barker v. State, 54 Neb. 53, 74 N. W. 427, that it was indispensable to the validity of a conviction of a felony that the record affirmatively show that the accused, before trial, was arraigned, and that he pleaded to the information or indictment, or, in case he stands mute, or refuses to plead, that the court entered a plea of not guilty for him. A re-examination of the question satisfies us that the conclusion then reached is sound, and should be adhered to. In addition to the authorities mentioned in the opinion in that case, the doctrine announced is sustained by the following: State v. Hughes, 1 Ala. 655; Childs v. State, 97 Ala. 49, 12 South. 441;Bowen v. State, 98 Ala. 83, 12 South. 808;People v. Corbett, 28 Cal. 328;McJunkins v. State, 10 Ind. 140;Rockey v. State, 19 Ind. 225;Tindall v. State, 71 Ind. 314;Bowen v. State, 108 Ind. 411, 9 N. E. 378;Miller v. People, 47 Ill. App. 472;Gould v. People, 89 Ill. 216;Parkinson v. People, 135 Ill. 401, 25 N. E. 764;State v. Epps, 27 La. Ann. 227;State v. Ford, 30 La. Ann. 311; State v. Christian, Id. 367; State v. Revells, 31 La. Ann. 387;State v. Hunter, 43 La. Ann. 156, 8 South. 624;Wilson v. State, 42 Miss. 639;State v. Hubbell, 55 Mo. App. 262;State v. Saunders, 53 Mo. 234;State v. Barnes, 59 Mo. 154;State v. Montgomery, 63 Mo. 296;State v. Agee, 68 Mo. 264;State v. Vanhook, 88 Mo. 105;Early v. State, 1 Tex. App. 248;McFarland v. State, 18 Tex. App. 313;Roe v. State, 19 Tex. App. 89;Jefferson v. State, 24 Tex. App. 535, 7 S. W. 244;Munson v. State (Tex. App.) 11 S. W. 114;Sperry v. Com., 9 Leigh, 623;Elick v. Territory, 1 Wash. T. 136;Douglass v. State, 3 Wis. 820;Crain v. U. S., 162 U. S. 625, 16 Sup. Ct. 952. There are a few decisions which hold that an arraignment and plea may be waived by the prisoner in all except capital cases, but such decisions, for the most part, were rendered under statutes different from ours. Some courts have decided--among others, our own--the mere placing the defendant on trial without arraignment or a plea to the indictment will not work a reversal of a conviction for a misdemeanor. Allyn v. State, 21 Neb. 593, 33 N. W. 212. Whether that decision was right or wrong we are not called upon to decide, since the scope of the opinion is limited to trials for misdemeanors. It has no application to prosecutions and convictions for felonies. This record shows that, after the jury had been impaneled and sworn, and the testimony of the two witnesses on behalf of the state had been taken, the defendant, over his objection and exception, was arraigned, and, refusing to plead, the court entered for him a plea of not guilty. It is argued that this cured the error committed by the failure to have the defendant arraigned and plead before entering upon the trial. We do not think so. The statutes of this state contemplate that these steps shall precede the trial. The object of requiring an arraignment and plea in a criminal case is to inform the accused of the nature of the charge against him, and to make up an issue for trial. Until a plea of not guilty is entered, there is no issue of fact for the jury to determine.If the arraignment and plea may take place during the progress of the trial, with the same propriety the defendant can be arraigned and his plea entered after verdict, and at the time the court passes sentence. There can be no valid trial for a felony without an arraignment and plea before the trial is entered upon. In Clark, Cr. Proc. § 128, it is said: “Not only is the arraignment necessary, but the plea is equally so, for without a plea there can be no issue to try; and the fact of arraignment and plea must appear on the record. By weight of authority, the arraignment and plea must precede the impaneling and swearing of the jury. An omission thereof cannot be cured by an arraignment and plea after the trial has commenced.” Numerous authorities are cited in the note which sustain the text. In 1 Bish. Cr. Proc. § 733, the rule is stated thus: “Without plea, there can be no valid trial. It is so even though the defendant went voluntarily and without objection to trial, knowing there was no plea. It must be before the jury are sworn; afterwards the plea is too late.” Collier, C. J., in State v. Hughes, 1 Ala. 657, observed: “The idea of selecting and swearing a jury to try a case which, in its progressive steps, has not reached the stage when it is triable, is a perfect anomaly. The oath administered to the jury related to the present time, and cannot authorize them to try a case which is afterwards placed in a condition for trial. Until the prisoner was called upon for his plea, it could not be known whether there would be an issue of fact for the jury, or what the issue, if any, might be. The prisoner, instead of submitting the question of his guilt, might have pleaded in abatement, or have presented to the court legal objections to the indictment.” In Parkinson v. People, 135 Ill. 401, 25 N. E. 764, the defendant was convicted of rape. The jury was impaneled and sworn, and one witness was partly examined, when it was discovered that there was no arraignment or plea. The defendant was thereupon arraigned, a plea of not guilty was interposed, and the trial proceeded without reswearing the jury. It was held the verdict and judgment were erroneous, because the arraignment and plea did not precede the selection and swearing of the...