State v. Reddington

• Decision Date: 24 August 1895
• Parties: STATE OF SOUTH DAKOTA Defendant in error, v. JAMES DEMPSEY REDDINGTON, Plaintiff in error.
• Court: South Dakota Supreme Court

7 S.D. 368

64 N.W. 170

STATE OF SOUTH DAKOTA Defendant in error, v. JAMES DEMPSEY REDDINGTON,

Plaintiff in error.

South Dakota Supreme Court

Error to Circuit Court, Codington County, SD

Hon. J. O. Andrews, Judge

Reversed

Glass, Weeden & Hanten and Bennett & Sheldon

Attorneys for plaintiff in error.

Coe I. Crawford, Attorney General

Lee Stover, States Attorney

C. X. Seward, C. E. DeLand

Attorneys for defendant in error.

Opinion filed August 24, 1895

KELLAM, J.

Plaintiff in error was convicted in the Codington county circuit court of the crime of murder, and sentenced to imprisonment for life. The case is here upon writ of error.

Considering the matters complained of in the order in which they occurred chronologically, we notice that the record nowhere states or affirmatively shows that the defendant, now plaintiff in error, was arraigned, or that he pleaded to the indictment. The statute requires that the defendant shall be arraigned (Compiled Laws § 7263); that he shall plead, and that his plea shall be entered on the minutes of the court, or, if he refuse, that a plea of not guilty shall be so entered (Id. §§ 7301—7303, 7311). If the defendant was not in fact arraigned, and did not plead, it was a grave oversight on the part of the court. If he was arraigned, and did plead, it was careless in the clerk not to have entered the fact and the plea. But the practical question now is, what is the legal effect either of such omission in fact or of such defect in the record? There are many reported cases of high authority squarely holding that omission to plead, or failure of the record to affirmatively show that the defendant was arraigned, and did plead, are, upon review, fatal to a judgment of conviction; and such seems to be the established rule of the common law. Our own judgment, fortified by many thoroughly considered and well reasoned cases from courts commanding high respect, leads us to the conclusion that, under the law as it is in this jurisdiction, this ought not to be held an imperious and inelastic rule. We should say that it was error to try a defendant without arraignment and plea, and that a record is defective which does not affirmatively show such procedure was had; but error does not always justify reversal. Injury is presumed from error, but the presumption is undermined and destroyed by the positive showing, by the record itself, that injury did not and could not result from such error. By “injury” is meant “effect upon the result.” This is the well-defined doctrine of our statute, which allows the defendant to except “to the decision of the court upon a matter of law by which his substantial rights are prejudiced, and not otherwise” (Comp. Laws, § 7439), and which requires this court. on writ of error “to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties” (Id. § 7520). In this case the record does show that the defendant was present in court personally and by his counsel, and than he was ready for trial, and that the trial proceeded precisely as though the minutes of the court showed a plea of “not guilty.” In State v. Green, 66 Iowa 11, the defendant did not plead, the taking and entering of his plea having been overlooked by the court, and yet the appellate court refused to reverse a judgment of conviction. It said:

“The case was treated, however, at every stage of the proceedings, and by all of the parties, as though a plea had been entered. The allegations of the indictment were all regarded as having been denied by the defendant. The state was required to establish the charge in the indictment by the same character of evidence, and with the same certainty, which would have been required if the formal plea of not guilty had been entered. The defendant was permitted to introduce evidence to disprove the charge. and his counsel was permitted to argue the case to the jury on its merits, and the jury were required to determine it under the same rules which would have governed in its determination if the plea had been formally entered.”

And this ruling was followed in State v. Hayes, 67 Iowa 27, and again in State v. Bowman, 78 Iowa 519, 43 N.W. 302. In People v. Tower ( Sup.) 17 NY Supp. 395, the record did not show arraignment, or that defendant pleaded, or that any plea was entered for him. The court held that “there was nothing in these omissions which tended to prejudice the rights of the defendant, and consequently they should be disregarded.”

The record in State v. Cassady, 12 Kan. 550, was the same as in the present case, it showing no arraignment or plea, but that defendant was present in person and by counsel, and was ready for trial, and that the case was regularly tried. The court, after reciting the statute, which is substantially the same as our section 7520, above referred to, held that “the omission did not and could not affect the substantial rights of the defendant, and therefore is not ground for disturbing the judgment.” In Hayden v. State, 55 Ark. 342, 18 S.W. 239. upon the Same ground and for the same reasons which are perspicuously stated in the opinion, it is held that, “where no prejudice appears upon the record, a conviction of a felonv- will not be set aside because the defendant was tried without arraignment or plea, if the cause was treated as at issue upon the plea of not guilty.” Allyn v. State, 21 Neb. 593,was a similar case. The opinion says: “While the proceeding was irregular, yet there was no prejudicial error, and the judgment cannot for that reason be reversed.” The state courts of Missouri have persistently held otherwise, but Chief Justice Henry, in State v. Vanhook, 88 Mo. 155, while adhering to the established rule in that state, significantly says: “After the jury is sworn and the trial proceeds, and all the testimony relates to’ the guilt or innocence of the accused in a misdemeanor case, it looks like trifling with justice to reverse the judgment because the record fails to show an arraignment or a plea of not guilty;” and in a case from that state in the federal court (U. S. v. Molloy, 31 Fed. 19) Judges Brown and Thayer refused to follow the rule of the Missouri courts. They held that, under the federal statute (Rev. St. § 1025) that “no indictment found and presented by a grand jury shall be deemed insufficient, nor shall the trial, judgment, or other proceeding be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant,” the failure of the trial court to arraign the defendant and take his plea was “an irregularity in the proceeding which could not possibly have tended to the defendant’s prejudice,” and overruled the motion for a trial. In territory v. Shipley, Pac. 313, the Montana supreme court refused to reverse a judgment of conviction on the ground that the record did not show that defendant was arraigned or pleaded. In Maxwell’s Criminal Procedure, at page 541, the author says:

“A party who personally and by his consent voluntarily goes into court, practically on a plea of not guilty, should not, after verdict, be permitted to assign as a reason for setting aside the verdict that he was not asked to say whether he was guilty or not guilty before the trial. He has had the benefit of the plea of innocence in his favor, and has been prejudiced in no right.”

We have drawn upon these authorities quite fully, and it is probable that further research would discover others on the same line to justify our conclusions that we ought to follow the rigid rule of the common law under the plain instruction of our statute that judgment of conviction must not be reversed on account of error which does not prejudice the substantial rights of the defendant. Neither civil nor criminal cases are tried for the primary purpose of vindicating or exemplifying formulated rules of law or practice. The object of every trial is to get at the very right of the matter in controversy. Rules are intermediate and subsidiary to that end, and nonobservance of an incidental rule, not made mandatory by statute, which obviously did not in any manner interfere with the acccomplishment of the very objective end of the trial, and so could work no injury to the defendant, is no ground for setting aside the result of such a trial. In this case the record shows that the case was regularly reached for trial; that defendant was present in person and by counsel; that he was ready for trial; that the trial proceeded and continued to verdict, without objection, in every respect as though a plea of “not guilty” had been made and properly entered; and that the jury was instructed that the defendant had plead “not guilty,” and the nature and effect of such plea fully explained by the court to the jury. Under these circumstances, we hold, after much deliberation, that the failure of the record to affirmatively show arraignment and plea does not entitle defendant to a new trial.

It is next complained that the trial court erred in its ruling fixing the order in which the right of peremptory challenge should be exercised. Whether the order in which the peremptory challenges were made under the direction of the court was exactly that contemplated by the statute, or not, does not seem to us to be of controlling materiality, as it affirmatively appears by the record that while the defendant was entitled to 20, he used only 11, such challenges, and accepted the jury and went to trial with 9 of his peremptory challenges unused. Under these circumstances, we are unable to see how defendant could have been prejudiced. It must be presumed that the jurors by whom he was tried were unobjectionable to him, for he made no attempt to use his unexhausted challenges against any or either of them. See Erwin v. State, 29 Ohio St. 186; State v. Lawlor, 28 Minn. 216, 9 N.W. 698; Wilson v. People, 94 Ill. 299; State v....