Minich v. People

• Decision Date: 04 December 1885
• Citation: 8 Colo. 440,9 P. 4
• Parties: MINICH v. PEOPLE. [1]
• Court: Colorado Supreme Court

9 P. 4

8 Colo. 440

MINICH v. PEOPLE. ^[1]

Supreme Court of Colorado

December 4, 1885

Error to the district court of Lake county.

M. L. Rice, Philip O. Farrell, and Taylor & Ashton, for plaintiff in error, Si Minich.

T H. Thomas, Atty. Gen., for the People.

HELM J.

Indictment for murder. Cause tried in January last. Plaintiff in error convicted of murder in the first degree, and sentenced to death. By means of a supersedeas from this court execution stayed until such time as the trial could be reviewed upon the record before us. Thirty-four errors are assigned, 15 of which are argued at length by counsel. We will now proceed to consider those sufficiently important or material to require notice.

1. It is urged that accused was not arraigned and given an opportunity to plead before trial. If this assignment of error is correct, the judgment must, of course, be reversed because the arraignment and plea constitute the issue to be tried, and consequently, if there was no arraignment and plea, there is nothing upon which a trial could be had. The record proper contains the following entry:

'Now, on this day, comes William Kellogg, who prosecutes the plea of the people in this behalf, and comes defendant herein, Si Minich, in his own proper person, and by M. L. Rice, Esq., his attorney, and thereupon said defendant, being brought before the bar of the court and arraigned, and the indictment herein being read to him, and he being furnished with a copy of the same, and a list of the jurors and witnesses, and required to plead to said indictment, whereupon he answers and says he is not guilty in the manner and form as charged in said indictment, and of this he puts himself upon the country for trial, as does the district attorney.'

The facts attending this proceeding, as disclosed by affidavits, in support of a motion to correct the record, are as follows: Plaintiff in error, being brought into court, accompanied by his attorney, and having received a copy of the indictment, after some little time, the exact length of which we are not advised, was called upon by the district attorney to plead. Thereupon he arose in presence of the court, and the district attorney began to read the indictment. When he had read a few words Mr. Rice, counsel for the accused, interrupted with the statement, substantially, 'You need not read the indictment; we have read it, and know its contents. The record may show a formal arraignment and plea of not guilty.' Whereupon the district attorney desisted from further reading of the indictment, and demanded of the accused whether he was guilty or not guilty, to which inquiry either he or his counsel responded 'Not guilty,' and the court directed such response to be entered of record. We think the weight of proofs in the affidavits sustains the conclusion that it was the accused himself who entered the plea. Some of the ancient formalities connected with the arraignment of persons accused of crime have long been discarded. And now there seem to be in practice three acts attending the proceeding, viz., calling the defendant to the bar of the court to answer the matter charged against him; reading the indictment to him; and demanding of him whether he is guilty or not guilty. By statute in this state (section 954 of the General Statutes) it is expressly enacted that the declaration of his plea may be made orally, by himself or by counsel. Also, that the mention of the arraignment and such plea in the records of the court shall constitute the issue between the people of the state and the prisoner.

It will be observed from the foregoing that the question whether the response of 'not guilty' was given by the accused or his attorney is of no importance. And upon examination of the facts above stated it will be seen that the arraignment in this case complied fully with the requirements mentioned except in one particular, i. e., the reading of the indictment. Is this a fatal defect? It is almost superfluous for us to say that the object to be attained by this step in the proceeding is to inform the prisoner of the exact character of the crime with which he stands charged, and for which he is to be tried. At common law the material importance of this proceeding is unquestioned, for it was the only means through which the accused was given by the state a complete description of the offense charged. Section 953 of the General Statutes now, however, expressly provides that before arraignment the prisoner shall be furnished with a copy of the indictment. There can be but one object in the enactment of this provision, and that is to accomplish the very purpose for which the reading of the indictment originally took place. It needs no argument to show that in this respect the latter method is better than the former; that with a copy of the indictment in his possession, to be read and reread by himself and by his counsel, he is more thoroughly advised of the crime charged than he could possibly be in listening to the oral reading thereof by the district attorney. The latter officer might by mistake or through design omit to read or misread material matters therein contained, but when the accused has an exact copy for his own inspection, and that of his attorney, no such mistake or imposition is possible. Thus we see that not only is the statutory provision framed for the purpose of accomplishing the very object designed in the reading, but that it is a decided improvement as far as the accused is concerned in this regard. In Illinois, under statutes similar to ours, it is declared that 'the statutory requirement of furnishing the prisoner with a copy of the indictment is a better means of information to him of the charge than the reading of the indictment to him.' Fitzpatrick v. People, 98 Ill. 259. And it is substantially held that the reading of the indictment is not essential.

In the case of Goodin v. State, 16 Ohio St. 344, the accused had been furnished with a copy of the indictment at a period prior to his arraignment. Upon his arraignment the indictment was not read to him, but he entered his plea of not guilty without objection, and the court say: 'It would have been, then, an idle ceremony to read him a paper with the contents of which he was already familiar.' The prisoner stood in court better informed of the character and nature of the charges preferred in the indictment than he could have been by any hasty reading thereof in court under the embarrassments incident to that situation. See 1 Bish. Crim. Proc. (2d Ed.) § 733. There are cases which hold that even in indictments for a felony, if the accused, anterior to trial, plead not guilty, and the plea is accepted and recorded, the entire omission of an arraignment is cured on the ground of waiver. But we do not, in this connection, pass upon the question of waiver, except as to the reading of the indictment. We hold that since the reason for this proceeding is fully satisfied, the irregularity, if such it can be termed, is not fatal to the judgment.

Counsel complain that the accused in this case could not have been sufficiently informed of the contents of the indictment at the time he pleaded thereto, because, as they say in argument, a copy thereof had only been delivered about five minutes previous. This suggestion comes too late. Had the announcement been made when he was called upon to plead to the indictment, the arraignment would have been postponed; and from the fact that he stood by and made no objection or protest when his counsel declared 'We have read the indictment, and know its contents,' we must presume that the statement was true.

2. It is assigned as error that a list of all the witnesses who testified in chief upon the trial was nor furnished to the accused previous to his arraignment, as required by section 953 aforesaid, which reads:

'Every person charged with murder or other felonious crime shall be furnished, previous to arraignment, with a copy of the indictment and a list of the jurors and witnesses. * * *'

It appears that the names of all witnesses who testified before the grand jury were indorsed upon the indictment, a copy of which instrument with such indorsement was delivered to the accused. It also appears that before going to trial, a list of all other witnesses used in chief by the state was given him; and it further appears that no objection was interposed to witnesses testifying on the ground that their names were not furnished the accused prior to arraignment. Under our practice, the foreman always indorses upon the indictment the names of all witnesses examined by the grand jury. In Illinois, where the practice is similar but statutory, it is held that the list of witnesses commanded by the statute to be furnished the prisoner prior to his arraignment is to embrace those which were to be indorsed upon the indictment. And it is further held that the prosecution is not confined to the list of witnesses thus furnished prior to arraignment; 'that the circuit court in the exercise of a sound discretion, and having a strict and impartial regard for the rights of the community and the prisoner, may permit such other witnesses to be examined as the justice of the case may seem to require.' Gardner v. People, 3 Scam. 83; Gates v. People, 14 Ill. 433; Logg v. People, 92 Ill. 598, and cases cited. Accepting the view taken in these cases, and applying it to the case at bar, we must overrule this objection. Plaintiff in error was, as already stated, prior to the trial, furnished with the names of all witnesses called in chief, and there is nothing in the record which shows that he was in any way surprised or his rights prejudiced by reason of the fact that he was not sooner apprised that they would be sworn. See Wi...