State v. Wooten

• Decision Date: 13 June 1927
• Docket Number: Criminal 649
• Citation: 32 Ariz. 203,256 P. 1055
• Parties: STATE, Appellant, v. A. A. WOOTEN, Respondent
• Court: Arizona Supreme Court

256 P. 1055

32 Ariz. 203

STATE, Appellant, v. A. A. WOOTEN, Respondent

Criminal No. 649

Supreme Court of Arizona

June 13, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. Elmo Bollinger, Judge. Affirmed.

Mr Arthur T. La Prade, County Attorney, Mr. Charles A. Carson Jr., and Mr. Lin H. Orme, Deputy County Attorneys, for the State.

Messrs Croaff & Conway and Messrs. Cox, Moore & Janson, for Respondent.

OPINION

McALISTER, J.

This is an appeal by the State of Arizona from an order granting A. A. Wooten, convicted of the crime of embezzlement, a new trial.

The record discloses that on February 24th, 1926, the trial of the defendant, Wooten, came on for hearing and that after the jury was impaneled and sworn and the information read, the county attorney began his opening statement with the remark that the information charges that the defendant embezzled the sum of $437 of the property of one Ruth Russell. Thereupon the attorney for the defendant objected upon the ground that the information did not allege that the money embezzled was the property of Ruth Russell, and the court sustained this objection and ordered the case resubmitted. Following a second preliminary, the county attorney filed another information on March 11th, 1926, charging in proper form that the defendant, A. A. Wooten, on or about July 11th, 1925, appropriated to his own use $437.68 of the money of one Ruth Russell, the same having been theretofore entrusted to him by her. To this the defendant at the proper time entered a plea both oral and written, of former jeopardy, and after a number of continuances, this plea was heard and denied. No other plea was taken, but the case came on for trial on May 28th, thereafter, and, both parties announcing ready, the jury was selected and sworn and the information read by the clerk, who stated to the jury that the defendant had entered a plea of "not guilty" thereto. The trial, however, proceeded to a verdict as though it had. Witnesses were sworn, evidence, both oral and documentary, was introduced, the defendant examined and cross-examined, arguments made, the jury instructed and the case submitted in the regular manner. Within a few days thereafter the defendant against whom the verdict was returned moved for a new trial, which was granted, and, the state being dissatisfied with this ruling, appeals from it and rests its case in this court solely upon that order.

The motion was based upon seven different grounds, but the court failed to state which of these led it to the action it took, and there is nothing in the record from which this can be ascertained. The state claims in its brief that it was the seventh, namely, that the defendant did not plead, and its only assignment and the argument thereon are based upon the contention that the plea under the circumstances was waived and the issue of "guilty" or "not guilty" joined, notwithstanding the court's failure to have the formal plea entered. Appellee upon the other hand contends that inasmuch as the record fails to disclose upon which ground the court acted, the county attorney must show that none of those set up in the motion for a new trial are good because the order was properly entered if any one of them justifies its action. This is true, but before looking into the sufficiency of these other grounds appellant's contention will be considered, inasmuch as a determination of it may dispose of the appeal.

Appellant states the question involved in the appeal in this language:

"Did not the defendant in this case by agreeing that the case be tried on the 28th day of May, 1926, and by voluntarily appearing for trial on that date, and answering ready for trial, and remaining silent when the clerk, in the usual form, stated to the jury that the defendant plead not guilty to the information, and further participating in said trial, thereby waive the necessity of an arraignment and of having a formal plea of not guilty entered before proceeding to trial?"

The trial court must have taken the view that there was no issue for the jury to determine since the formal plea of "not guilty" was not entered, and in reaching this conclusion it evidently relied upon two decisions of the territorial Supreme Court, Territory v. Brash, 3 Ariz. 141, 32 P. 260, decided in 1890, and Territory v. Blevins, 4 Ariz. 68, 77 P. 616, decided in 1893, for these cases clearly uphold its ruling. Appellant contends, however, that because of the harmless error clause of the state Constitution and the provision of the Penal Code enacted in pursuance thereof, this holding is not now binding on the courts of the state. The first of these, section 22, article 6, Constitution of Arizona, reads as follows:

"No cause shall be reversed for technical error in pleading or proceedings when upon the whole case it shall appear that substantial justice has been done."

The second, paragraph 1170 of the Revised Statutes of 1913 (Penal Code), is in this language:

"After hearing the appeal, the court shall give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, and no judgment in any criminal case shall be reversed for technical error in pleading or proceedings when upon the whole case it appears that substantial justice has been done."

We are clearly of the view that these provisions have the effect claimed for them by appellant, and therefore that the order of the court granting a new trial in so far as it was based upon the fact that there was no plea in the case was erroneously entered. The decisions referred to above were undoubtedly in accord with the authorities when rendered, and if still the law in this jurisdiction the ruling in this case would be correct and should be upheld; but since the adoption of section 22, article 6, as a part of the fundamental law of this state, it is necessary, before the failure to take the plea should be held to constitute reversible error, to ascertain further whether such failure affected any substantial right of the defendant or was merely a technical error without prejudicial effect.

There is no question but that the defendant was entitled to an opportunity to plead to the merits following the denial of his plea of former jeopardy, this being the method the statute provides for joining the issue as to the guilt or innocence of one charged with a criminal offense but for some reason the court overlooked taking his plea. Notwithstanding this omission, however, he announced ready for trial when the case was called, went through the entire proceeding without objecting to the fact that he had not been allowed to plead or indicating in any way a desire to do so, remained silent when the clerk stated to the jury that he had pleaded "not guilty," and conducted his side of the case from then on as though he had entered his plea. He was permitted to do everything pertaining to his defense that he cared to and was denied no right whatever that would have been accorded him had the plea been entered. By no stretch of imagination could it be said that he would have been in any better position had he pleaded formally that he was not guilty. This being true, it is difficult to understand how the failure to enter his plea could have been in the least prejudicial or regarded as anything more than the merest technicality, and to treat it, under the circumstances, as...