State v. Walton

• Decision Date: 27 August 1907
• Citation: 50 Or. 142,91 P. 490
• Parties: STATE v. WALTON.
• Court: Oregon Supreme Court

91 P. 490

50 Or. 142

STATE v. WALTON.

Supreme Court of Oregon

August 27, 1907

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Charles W. Walton was convicted under an indictment charging assault and robbery, and appeals. Reversed, and new trial ordered.

Henry St. Rayner, for appellant.

G.C Moser, Deputy Dist. Atty., for the State.

KING C.

On September 1, 1904, an information was filed by the district attorney against defendant, Chas. W. Walton, charging him with assault and robbery of one Emmanuel Johnson. It appears from the record that on the following day the information was read to defendant and a copy thereof handed to him, after which, on his request, he was given two days in which to plead. On the day fixed to plead a demurrer was filed, which on October 5th following, was overruled, succeeded three weeks later by defendant's trial and conviction. After verdict, written objections to the sentence were filed, on the ground that defendant had not been fully arraigned, not having at any time answered, nor been given an opportunity to answer, as to whether he was guilty or not guilty, which were overruled, and defendant sentenced to 20 years' imprisonment.

It is immaterial whether the motion filed was intended as a motion in arrest of judgment, or an objection to further proceedings, as its contents are sufficient to call the court's attention to the alleged irregularity in the trial, and to constitute an objection to the imposition of the sentence pronounced. We are then confronted with the question as to whether the entry of a plea on behalf of the defendant is essential to the trial of one accused of felony. Defendant made no objection to the irregularity complained of until after verdict, nor does it affirmatively appear that an entry of a plea would have affected the result, or that defendant was in any manner prejudiced by the oversight. The record not only fails to disclose that any plea was entered, but it appears from affidavits in the record that he was not asked whether he desired to enter a plea of guilty or not guilty, and that at no time during the trial did defendant refuse to plead. It is urged by counsel for the state, and held by the learned court below, that such plea is not essential where no objections are made thereto during the trial, and that the alleged error is of no avail to defendant unless it appears from the record that he lost some rights by reason of a plea not having been entered. B. &amp C. Comp. § 1328, indicates what shall constitute an arraignment, and is as follows: "The arraignment must be made by the court, or by the clerk or the district attorney under its direction, and consists in reading the indictment to the defendant, and delivering to him a copy thereof and the indorsements thereon, including the list of witnesses indorsed on it or appended thereto, and asking him whether he pleads guilty or not guilty to the indictment." It appears from the record that all the requirements of this provision were complied with, except the record does not disclose that defendant was asked "whether he pleads guilty or not guilty to the indictment." If essential to a conviction of a felony that such plea must be entered before proceeding to trial, the same rule would necessarily apply with reference to the requirements of the record of the proceedings in this respect, as under the statute making the presence of the defendant necessary during the proceedings. The rule is settled in this state that this fact must affirmatively appear in the record of the trial. State v. Cartwright, 10 Or. 193; State v. Gilbert, decided May 14, 1883 (unreported). In the latter case two indictments were filed against the defendant, accusing him of murder. With the exception of the names of the persons alleged to have been murdered, there was no difference in the indictments. The defendant was tried under both indictments at the same term, convicted, and sentenced to death; but in the journal entry of the judgment the clerk neglected to state any crime for which the conviction was had, nor was there any record of the trial indicating upon which of the indictments the defendant was tried, while both appeared in the transcript of the judgment roll. In passing upon the record, Mr. Chief Justice Watson says: "It has been suggested that this court should presume that the proceedings in the court below were regular, and that the duplicity in the record has occurred through the inadvertence or mistake of the clerk in making up the judgment roll, of which the record before us is simply a transcript. But this judgment roll, although prepared by the clerk, is the record of the court. To it alone can we look to ascertain what the action of the court below was, and upon it determine whether any error was committed. The duty of the clerk in such matters is ministerial undoubtedly, and subject to the supervision and control of the court. But his record is the highest record of the judicial action of the court. It imports verity, and, until impeached by the court itself, is conclusive of the matters to which it relates. Schirmer v. People, 33 Ill. 276." The court accordingly held that no conditions could be presumed to exist other than as appear in such record; that the record might be amended to conform to the facts (where no adverse rights have intervened), but, since this had not been done, it would be presumed that no record of such proceedings could be made other than as there disclosed. It follows under the decisions referred to that it is unnecessary for us to determine whether the affidavits in the record can be considered, since the record fails to disclose that Walton was given an opportunity to answer as to whether he was guilty or not guilty, or refuse to do so. His rights will, therefore, be determined under the record before us without reference to the affidavits, and it will accordingly be presumed that no plea was either made or refused.

The Criminal Code of this state provides: "If the demurrer be disallowed, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may allow; but if he do not plead, the judgment must be given against him." B. & C. Comp. § 1364. A demurrer was filed by the defendant, and, after it was overruled, had he refused to plead, this provision of the statute would require judgment to have been given against him. Our statute (section 1375) further provides that "an issue of fact arises (1) upon a plea of not guilty, or (2) upon a plea of former conviction, or acquittal of the same crime"; ( Id. § 1376) that "an issue of law arises upon a demurrer to the indictment"; and ( Id. § 1377) that "an issue of law must be tried by the court, and an issue of fact by a jury, of the county in which the action is triable."

It is maintained by counsel for the state, and suggested in the decision of the circuit court, that, as a person charged with a crime is permitted at his election to plead forthwith or at such further time as may be allowed by the court, if he does not so plead, judgment must be entered against him, and that if the defendant desires to enter a plea, it becomes his imperative duty to make it manifest; citing People v. King, 28 Cal. 265, as sustaining that view. In that case the defendant, when called upon to plead, acting on the advice of his attorney, refused to do so, whereupon the court ordered a plea of not guilty to be entered, and impaneled a jury before which he was tried, resulting in conviction. The statute of that state, like ours, provides that, in case a defendant refused to plead, judgment should be entered against him. Relying on the theory that the trial was irregular because sentenced on the verdict of a jury in place of sentence by the court without such verdict, the defendant appealed. On this question the court held that the defendant was in no way injured, as he had not only had every guarantee given him by the statute, but, more than that, he had been tried by a jury, and, while it was the duty of the court to have entered judgment without a jury in the manner specified in the statute, having had a jury trial, defendant, not being injured by reason thereof, was in no position to complain. In holding that case to be in point here the learned court below evidently overlooked the fact that the defendant in the case cited refused to plead after being given an opportunity to do so. That the trial court and counsel for the state have misapplied the authority last considered manifestly appears from later decisions on the point in that state, among which is People v. Corbett, 28 Cal. 328. The defendant there was tried and convicted of grand larceny. After being informed of the indictment, he asked, and was given, four days in which to plead, but did not plead on the day set for that purpose. Two weeks later he was brought into court, and through his counsel moved for a separate trial; the indictment being against him and two others. The motion was granted, a jury impaneled, witnesses sworn on behalf of defendant, and the case argued to the jury, which, after receiving their charge, returned a verdict of guilty. The court there states that there was manifestly no arraignment, that the indictment was not read to the defendant, nor a copy tendered to him, nor defendant asked whether he would plead guilty or not guilty to the indictment, and holds: "If the defendant had at any time anterior to the trial pleaded not guilty, the defects in the arraignment, or rather the omission to arraign, might have been cured, on the ground of waiver. But neither the motion of defendant for a separate trial, nor the introduction of witnesses by him, nor the fact that the case was argued on his...