Browning v. State

• Decision Date: 17 March 1898
• Docket Number: 9717
• Citation: 74 N.W. 631,54 Neb. 203
• Parties: C. H. BROWNING v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

74 N.W. 631

54 Neb. 203

C. H. BROWNING v. STATE OF NEBRASKA

No. 9717

Supreme Court of Nebraska

March 17, 1898

ERROR to the district court for Gage county. Tried below before STULL, J. Reversed.

REVERSED AND REMANDED.

L. W Colby, for plaintiff in error.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.

OPINION

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 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 the 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 So. 441; Bowen v. State, 98 Ala. 83, 12 So. 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, 30 La. Ann. 367; State v. Revells, 31 La. Ann. 387; State v. Hunter, 43 La. Ann. 157, 8 So. 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. Ct. App. 248; McFarland v. State, 18 Tex. Ct. App. 313; Roe v. State, 19 Tex. Ct. App. 89; Jefferson v. State, 24 Tex. Ct. App. 535, 7 S.W. 244; Munson v. State, 11 S.W. 114; Sperry v. Commonwealth, 36 Va. 623, 9 Leigh 623; Elick v. Washington Territory, 1 Wash. Terr. 136; Douglass v. State, 3 Wis. 820; Crain v. United States, 162 U.S. 625, 40 L.Ed. 1097, 16 S.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 is 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 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's Criminal Procedure, section 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 Bishop, Criminal Procedure, section 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; afterward the plea is too late."

Collier, C. J., in State v. Hughes, 1 Ala. 655, 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 jury, and that the arraignment made and plea entered during the trial did not purge the record of the error.

Crain v. United States, 162 U.S. 625, 40 L.Ed. 1097, 16 S.Ct 952, was a conviction for forgery, and a reversal was sought on the ground that there had been no formal arraignment and plea before the beginning of the trial. The record showed the appearance of the prosecuting attorney; the appearance of the accused in person by his counsel; an order by the court that a jury come "to try the issue joined;" the selection of the jury which were "sworn to try the issue joined and a true verdict render;" the trial, verdict of guilty and judgment entered thereon. The conviction was reversed, because it did not affirmatively appear that the defendant was formerly arraigned or that he pleaded to the indictment before trial. Mr. Justice Harlan delivered the opinion of the court, and after reviewing the authorities on the question, said: "Without citing other authorities we think it may be stated to be the prevailing rule, in this country and in England, at least in cases of felony, that a plea to the indictment is necessary before the trial can be properly commenced; and that unless this fact appears affirmatively from the record the judgment cannot be sustained. Until the accused pleads to the indictment and thereby indicates the issue submitted by him for trial, there is nothing for the jury to try; and the fact that the defendant did so plead should not be left to be inferred from a general recital in some order that the jury were sworn to 'try the issue joined.' The record should be a permanent memorial of what was the issue tried, and show whether the judgment whereby it was proposed to take the life of the accused or to deprive him of his liberty, was in accordance with the law of the land. * * * Where the crime charged is infamous in its nature, are we at liberty to guess that a plea was made by or for the accused, and then guess again as to what was the nature of that plea? * * * We are of...