State v. Moss

• Decision Date: 05 March 1912
• Parties: STATE v. MOSS.
• Court: Missouri Court of Appeals

144 S.W. 1109

164 Mo. A. 379

STATE v. MOSS.

St. Louis Court of Appeals, Missouri.

March 5, 1912.

1. CRIMINAL LAW (§ 968) — ARRAIGNMENT — PLEA — NECESSITY.

If the record does not affirmatively show an arraignment or plea by accused, either before the justice or in the circuit court, the judgment should be arrested.

2. CRIMINAL LAW (§ 261) — ARRAIGNMENT — TIME.

If there was no arraignment or plea before the justice before whom accused was originally convicted, those steps must be taken in the circuit court before the jury is sworn and any evidence is heard, since there is no issue to try until they have been taken.

3. CRIMINAL LAW (§ 1031) — APPEAL — PRESENTATION BELOW — FAILURE TO ARRAIGN.

The objection to the failure to arraign accused or enter a plea may be first raised in the appellate court.

Error to Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Milton Moss was convicted of a misdemeanor, and he brings error. Reversed and remanded.

Proceeding on writ of error. Defendant was convicted of a misdemeanor before a justice of the peace. He appealed to the circuit court, where he was again convicted, and he comes here for a review of the case. The record does not disclose any arraignment or plea in the circuit court; nor does the original transcript of the justice show such arraignment or plea before the justice. But after verdict the defendant moved for a new trial and in arrest of judgment, on the ground that the record does not show an arraignment or plea of the defendant, and while these motions were pending and undisposed of the prosecuting attorney, by leave of court, filed an amended transcript of the justice purporting to show that formal arraignment was waived and a plea of not guilty entered before the justice. Thereupon defendant's motions were overruled, and judgment entered against him in accordance with the verdict.

Clyde Williams and R. A. Frazier, for plaintiff in error. Albert Miller, Pros. Atty., for the State.

CAULFIELD, J. (after stating the facts as above).

The motion in arrest of judgment should have been sustained, because the record failed to show an arraignment or plea of the defendant, either before the justice or in the circuit court. State v. West, 84 Mo. 440. It is true that after verdict, and while the motion was pending, this defect was attempted to be cured by the filing of a so-called amended transcript; but we are of the opinion that that filing came too late. The arraignment and plea of the accused are matters of substance, and not of mere form. They must have occurred either before the justice or in the circuit court, and the record must affirmatively show the fact. State v. Geiger, 45 Mo. App. 111. If there was no arraignment or plea before the justice, then these must be the first steps in the progress of the trial in the circuit court. "They must precede the swearing of the jury and the hearing of the evidence; for till they occur there is no issue to try." (The italics are our own.) State v. Montgomery, 63 Mo. 296; State v. Saunders, 53 Mo. 234; State v. Mikel, 125 Mo. App. 287, 102 S. W. 19; State v. Sharpe, 119 Mo. App. 386, 95 S. W. 298.

A trial had without arraignment or plea is so much without effect that the defect may be noticed for the first time in the appellate court. State v. Mikel, supra. And so jealously is this matter of arraignment before trial guarded that, though the statute provided that if a person arraigned deny the charge in any form, or require a trial, or refuse to plead or answer, and in all cases when he does not confess the indictment to be true, a plea of not guilty may be entered and the trial proceed, still it was held that a plea of not guilty could not be entered nunc pro tunc after verdict. State v. Saunders, 53 Mo. 234, 236. In that case, the Supreme Court said: "In the present case, the prisoner was tried throughout without any issue being framed on which a trial could be had. It is evident there was no issue either in form or substance. It was undoubtedly a mere inadvertence on the part...