Cornett v. United States

• Decision Date: 24 August 1925
• Docket Number: No. 6716.,6716.
• Citation: 7 F.2d 531
• Parties: CORNETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 531 (1925)

CORNETT v. UNITED STATES.

No. 6716.

Circuit Court of Appeals, Eighth Circuit.

August 24, 1925.

Fred L. Hoyt and Roger L. Stephens, both of Oklahoma City, Okl., for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

Plaintiff in error, hereafter called defendant, was tried and convicted on an indictment containing two counts: First, possession of intoxicating liquor in and upon Indian country, to wit, Osage county, Okl.; second, sale of intoxicating liquor to one Carl Ponca, an Osage Indian, and a ward of the government, in violation of the acts of May 25, 1918 (40 Stat. 563 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137aa), July 23, 1892 (27 Stat. 260 Comp. St. § 4136a), January 30, 1897 (29 Stat. 506 Comp. St. § 4137). See, also, 39 Stat. 983 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137a).

After the government had introduced its evidence and rested, the defendant was sworn and testified that he had never been arraigned under the indictment, and thereupon he moved for a directed verdict on the ground that he had not entered any plea to the indictment, and that there was no issue joined in the case. The court asked whether the defendant wished the indictment read, and this was waived. The court then said, "Let the defendant say whether he is guilty or not guilty." The defendant said, "Not guilty." The court thereupon said, "The plea will be entered. Of course, it has been the rule that defendants when arraigned enter a plea of not guilty prior to the trial. However, it has been decided authoritatively that, if nothing is said about the plea, and the case is tried on the theory that the defendant does deny the charge, the formal failure to enter a plea before trial is not material. That will be the case where the defendant has the full benefit of the denial, the same as if he had entered a denial by a formal plea. But now the plea is entered during the trial, and the defendant here will be given any privilege and benefit that he would have had by entering a plea of not guilty before the trial commenced. For these reasons the motion is overruled." This ruling of the court, to which exception was taken, is now assigned as error.

The case of Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097, is cited to the effect that a trial cannot be rightfully had until the defendant has been formally arraigned and his plea entered. The Crain Case, however, has been criticized and overruled in the case of Garland v. Washington, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772. In that case Garland was originally charged with an offense by information in the state court of Washington, and was arraigned, tried, and convicted. A new trial was granted. Later, a second information, technically different but for the same offense, was filed against him, under which no arraignment was had and no plea entered. No specific objection was taken before the trial to the want of formal arraignment. He was tried under the second information and convicted, the conviction was affirmed by the Supreme Court of the state, and the case was carried to the Supreme Court of the United States by writ of error.

The court said, quoting approvingly from the dissenting opinion in the Crain Case: "A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until * * * the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court."

The court further said: "Holding this view, notwithstanding our reluctance to overrule former decisions of this court, we now are constrained to hold that the technical enforcement of formal rights in criminal procedure sustained in the Crain Case is no longer required in the prosecution of offenses under present systems of law, and so far as that case is not in accord with the views herein expressed it is necessarily overruled."

See, also, Rulovitch v. United...