Scruggs v. State

• Court: Mississippi Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: Scruggs v. State, 130 Miss. 49, 93 So. 482 (Miss. 1922)
• Decision Date: 23 October 1922
• Docket Number: 22731
• Parties: SCRUGGS v. STATE

93 So. 482

130 Miss. 49

SCRUGGS v. STATE

No. 22731

Supreme Court of Mississippi

October 23, 1922

CRIMINAL LAW. Arraignment waived by proceeding to trial and subsequent objection was unavailing.

A defendant charged with a felony may and does waive arraignment where he proceeds to trial on the indictment without objection and subsequently objects after the evidence has been submitted. Section 1480, Code 1906 (section 1238 Hemingway's Code), considered.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Clarke county, HON. J. D. FATHEREE Judge.

S. O Scruggs was convicted of manufacturing intoxicating liquor and he appeals. Affirmed.

Judgment affirmed.

Anderson & Case, for appellant.

On the assignment as error of the failure of the court to require a legal arraignment, we note counsel for the state says, after quoting at some length from the opinion of the court in Arbuckle v. State, 80 Miss. 15, 31 So. 437, cited by appellant, he thinks that under the provision of section 3212, Hemingway's Code, as construed in the Arbuckle case, supra, that appellant's assignment of error is not well taken. He overlooks the fact that the record of this case shows affirmatively appellant made this assignment of error ground of special exception in the lower court.

Again the cases cited by counsel for appellee on this point are cases in which the accused waived, by his silence and failure to object in the lower court, the right to complain because of want of arraignment on appeal. We, therefore, submit these cases dealing with the proposition of want of arraignment as assignment of error raised for the first time in the appellate court are not applicable in this case and further that section 4936, Code 1906 (section 3212, Hemingway's Code), does not apply to this case, since the record shows affirmatively that the want of a legal arraignment was made ground of special exception in the lower court.

There can be no question about waiving this right in the case before the court, for the reason this court has held that legal arraignment in a felony case cannot be waived, moreover this record shows the defendant did not waive or attempt to waive arraignment, but, on the contrary objected to the failure of same and excepted to the action of the court in permitting his arraignment, over his objection after the state had closed its case. As we understand the law in this state, a legal arraignment is absolutely essential to a valid trial on a felony charge and cannot be waived and if the failure of this arraignment is made ground of special exception on the trial in the lower court it is then subject to review and ground for reversal in the supreme court. Section 4926, Code 1906 (section 3212, Hemingway's Code); Arbuckle v. State, 80 Miss. 15, 31 So. 437, and cases cited in appellant's original brief.

We believe the proposition of overruling all the cases on this point which declared the law in this state to be as above set out and which has been the law since the early jurisprudence of this state to the present day, will not, and of right out not, address itself to the minds of this court as lightly as counsel for the state calls on the court to overrule this sound and time-honored rule of law.

H. Talbot Odom, special assistant attorney-general, for the state.

Appellant complains because, as he says, there was no legal arraignment in this case, in that, he was not arraigned and required to plead until after the state had rested its case. The record does not show that the appellant objected to continuing the trial on account of the failure of the court to arraign him earlier. However, it does show that there was an exception to the ruling of the court, the exact language being found at page 38 of the record, and is as follows:

BY MR. ANDERSON: "Let the record show that the defendant was arraigned after the state had closed its evidence, and the defendant excepted to the court's ruling allowing this to be done."

Under the common law during the early history of England, when a person accused of crime, was dealt with almost summarily and was not given the right to testify in his own behalf or to be represented by counsel, and when he was given a most cruel and unusual punishment, and sometimes suffered death, or very trivial offenses, it became necessary for the appellate court to require the strictest formality in court procedure; and under these circumstances the well-recognized rule, that a failure to observe these formalities in every respect, would cause a reversal of the judgment of the lower court. This rule was absolutely necessary in order to protect the rights and liberties of its citizens.

During the early history of the United States our federal courts and most of our state courts followed the rule laid down by the courts of England with reference to formalities; but at the present time there is a great tendency to depart from the rule requiring such strictness in pleading and procedure, the modern tendency being to require the trial courts to accord the accused a fair and impartial trial. In reviewing these cases in appellate courts, they look to the merits of the case rather than technicalities, and if convinced that the accused's rights were not prejudiced in the lower courts, then no reversal will be had where the trial court has failed to follow the old rule of strict pleading and procedure.

Counsel for appellant contends in this case that there can be no valid trial on a felony charge without arraigning the person accused and requiring him to plead before the jury is sworn. The state's contention is that in this case the appellant was not at all prejudiced on account of the failure of the trial court to arraign the prisoner and require him to plead before beginning the trial; that the trial was conducted in the same manner, and the accused was given every right that he would have had if the prisoner had been formally arraigned and required to plead before the trial began; and that by his silence he impliedly waived arraignment and plead not guilty by going to trial, introducing witnesses in his behalf and taking the stand himself and denying the charge against him. In other words, appellant was informed of the charge against him, and the defense interposed by him would not have been strengthened if he had been arraigned prior to the trial.

The general rule laid down in 16 C. J., at page 392, is as follows: "Moreover, many of the courts have departed from the old practice, even in cases of felony, and now permit an arraignment to be waived, not only by express waiver, but also by acts equivalent thereto," citing a long list of authorities, among which are the following cases which will be discussed later in this brief: Hack v. State (Wis.), 45 L. R. A. (N. S.), 664; Garland v. State of Washington, 232 U.S. 642, 58 L.Ed. 772; Bateman v. State, 64 Miss. 233; 8 Ruling Case Law, at page 108, under Criminal Law, par. 71.

In my opinion, the case of Arbuckle v. State, recorded in 80th Miss. at page 15, impliedly overrules the cases cited by appellant in support of his contention. McQuillen's case, 8 Smed. & M. 587, was decided under the common law. Wilson's case, 42 Miss. 639, was decided under the Code of 1857, section 7, article 3, page 573, which is identical with section 2884 of the Code of 1871; and Cachute's case, 50 Miss. 165, was decided under the Code of 1871, section 2884. It is a remarkable fact that neither in Wilson's case nor in Cachute's case do the courts refer to the provisions of these sections of the Codes of 1857 and 1871, but they rely on McQuillen's case, supra, in both cases. It would seem that the court overlooked the statutes. Counsel for appellant in Cachute's case, 50 Miss. 167, do refer to the provision in the Code of 1871, and say that the statute cannot be applied to these defects because "the verdict which under the statute is considered as curing defects of any kind, is clearly a verdict upon a plea of not guilty, and the verdict in such case, they say, would be "a nullity, because it did not appear to be on any issue at all." However that may be under the provisions of the Codes of 1871 and 1857, the point that the objection cannot be made in this court for the first time is certainly sound, since the Act of 1878, which is substantially section 1433 of the Code of 1880, and section 4370 of the Code of 1892, has greatly enlarged the provisions of the Codes of 1857 and 1871. It will be observed that under the Codes of 1857 and 1871 the provision was that no verdict or judgment could be reversed, after the same was rendered, for "any defects or omissions," etc., which might have been taken advantage of before a verdict, and which were not so taken advantage of, where as the provision of the Codes of 1880 and 1892, is that no judgment shall be reversed because of any error or omission in the case in the court below "unless the record shows that the errors complained of were made the ground of special exception in that court." Under the first two codes the defects or omissions which are cured are those only which might have been taken advantage of before verdict. Under the last two, all defects and omissions, within constitutional limit, which occurred at any time in the court below, are cured, unless objected to therein.

Under the first two codes, the verdict cured the defects or omissions unobjected to. Under the last two it is not the verdict that cures, but the positive provision of the statute, which cures all defects or omissions unobjected to without reference to whether they occurred before or after verdict. So if we should regard Cachute's case and Wilson's case as being decided upon the provisions of the Codes of 1857 and 1871, to which no reference was made by the court...