[§ 715] e. Requisites and Sufficiency of Arraignment (1) In General. In olden times the arraignment was a very formal affair; but, in accordance with the modern spirit, much of the strictness then required has been relaxed.78 The mode of arraignment should be as prescribed by statutes in force at the time;79 but as a general rule a record showing that defendant was brought into court, appeared by counsel, and pleaded to the indictment sufficiently shows an arraignment.80 In view of the object of the arraignment,81 if accused voluntarily makes his plea or answer without the formality of a demand upon him to know what it is, and if the court accepts this plea as sufficient to form the issue between the state and accused, and puts that plea fore the trial. Code, §§ 7566, 7840." | 798. Howard v. State, 165 Ala. 18, 28, 50 S 954. [b] In Missouri, in capital cases, but not in other felonies, defendant is given twenty-four hours in which to plead after being furnished a list of the panel. State v. Hunter, 171 Mo. 435, 71 SW 675. [c] in Montana, "if, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the information." Pen, Code § 1895. State v. De Wolfe, 29 Mont. 415, 418, 74 P 1084. [d] In Oklahoma (1) a defendant arraigned on a felony charge is entitled to a day in which to plead under the statute, if he demands it, and it is error to refuse it. Schlumbohm v. State, 5 Okl. Cr. 36, 113 P 235. (2) If he fails to demand it, he waives the right. Howard v. State, 2 Okl. Cr. 200, 101 P 131. (3) The filing of a challenge to the array of jurors also waives the right. McCord v. State, 2 Okl. Cr. 209, 101 P 135. [e] In Texas two entire days after his arrest are allowed accused by statute (Code Cr. Proc. art 567) in which to file written pleadings, and this time is not waived by filing them sooner. Martin v. State, (Cr.) 188 SW 1000; Graham v. State, 72 Tex. Cr. 9, 160 SW 714; Starbeck v. State, 53 Tex. Cr. 192, 109 SW 162: Brewin v. State, 48 Tex. Cr. 51, 85 SW 1140; Lightfoot v. State, (Cr.) 77 SW 792; McFadin v. State, 44 Tex. Cr. 471, 72 SW 172; Whitesides v. State, 44 Tex. Cr. 410, 71 SW 969; Holden v. State, 44 Tex. Cr. 382, 71 SW 600; King V. State, (Cr.) 56 SW 926; Johnson v. State, (Cr.) 49 SW 618: Evans v. State, 36 Tex. Cr. 32, 36 SW 169; Reed v. State, 31 Tex. Cr. 35, 19 SW 678. [f] In Washington one day is allowed in which to plead, but where the record shows that when defendant was arraigned he was asked if he was ready to plead and replied that he was, and then interposed a plea of not guilty, the objection that he was not allowed one day is without merit. State v. Littooy, 37 Wash. 693, 79 P 1135; State v. Sexton, 37 Wash. 110, 79 P 634; State v. Brown, 37 Wash. 106, 79 P 638. 75. Bohannan v. State, 11 Okl. Cr. 69. 142 P 1092; McFadin v. State, 44 Tex. Cr. 471, 72 SW 172; Whitesides v. State, 44 Tex. Cr. 410, 71 SW 969. 76. Jenkins v. State, 11 Okl. Cr. 168. 145 P 500. 77. State v. Thompson, 32 Minn. 144, 19 NW 730. See also infra § of record, it is manifestly sufficient to subserve the purpose of justice.82 The arraignment should be in open court,83 and statutes sometimes require a certain number of justices to be present at this ceremony,84 but the absence of a jury from attendance on the court is immaterial.85 Right to counsel. It is generally made the duty of the court, on arraignment, to inform accused of his right to counsel.86 But failure to comply strictly with such requirement does not necessarily invalidate the arraignment unless the substantial rights of defendant were prejudicial thereby.87 Under the laws of some states defendant also has the fundamental right to have counsel present at his arraignment, and arraignment in the absence of counsel is reversible error.88 In others this is not so, provided defendant is not prejudiced.89 [§ 716] (2) Calling Prisoner to Bar by Name. In cases of felony the prisoner is to be brought to the bar of the court;90 but without irons or any manner of shackles, unless there is evident danger of escape or other good cause.91 The prisoner was required formerly to hold up his hand as a further. ing to law. Green v. Com., 12 Allen 155; Op. of Justices, 9 Allen 585. 85. Hollibaugh v. Hehn, 13 Wyo. 269, 79 P 1044. [a] Lapse of three terms without arraignment. When the state fails to arraign a prisoner for more than three terms, an order for dismissal will be sustained where the only excuse is that the prosecuting attorney and the sheriff had heard that defendant had left the state. State v. Radoicich, 66 Minn. 294, 69 NW 25. 78. Howard v. State, 165 Ala. 18, 50 S 954; Parkinson v. Peo., 135 Ill. 401, 25 NE 764, 10 LRA 9; State v. Saunders, 53 Mo. 234; State v. Weber, 22 Mo. 321; Goodin v. State, 16 Oh. St. 344. 79. Peo. v. Wheatley, 88 Cal. 114, 26 P 95; Ex p. Young Ah Gow, 73 Cal. 438, 15 P 76; Peo. v. Brooks, 65 Cal. 295, 4 P 7; Peo. v. Lewis, 64 Cal. 401, 1 P 490; Peo. v. King, 64 Cal. 338, 30 P. 1028. V. State, 165 80. Ala.-Howard Ala. 18, 50 S 954. Fla.-Denham v. State, 22 Fla. 664; Reed v. State, 16 Fla. 564. Ga. Fears v. State, 125 Ga. 739, 54 SE 667. Ill.-Peo. v. Darr, 255 Ill. 456, 99 NE 651; Fitzpatrick v. Peo., 98 Ill. 259; Peo. v. Ezell, 155 Ill. A. 298. Ind. T.-Gardner v. U. S., 5 Ind. T. 150, 82 SW 704. Miss.-Bateman v. State, 64 Miss. 233, 1 S 172. Mo.-State v. Witherspoon, 231 Mo. 706, 133 SW 323; State v. Grate, 68 Mo. 22; State v. Braunschweig, 36 Mo. 397. [a] In Pennsylvania an entry of the arrignment on the record is necessary only in capital cases. Jacobs v. Com., 5 Serg. & R. 315. 81. See supra § 711. 82. 982. U. S. v. McKnight, 112 Fed. 83. Jones v. McClaughry, 169 Iowa 281, 151 NW 210. 84. See cases infra this note. [a] In Massachusetts (1) under the act of 1804, c 105, one indicted for a capital offense could not be arraigned unless three justices of the court were present; and the objection was open after verdict. Com. V. Hardy, 2 Mass. 303. (2) Under St. (1869) c 433 § 2, a person indicted for murder may be arraigned before one judge in vacation, at a time appointed pursuant to that statute. Costley v. Com., 118 Mass. 1. (3) Under Gen. St. c 112 §§ 8, 12, and c 160 §§ 1-13, it is competent for the supreme judicial court, when held by a single justice, to arraign a person indicted for a capital crime, and, if he pleads guilty, to proceed and award sentence against him, accord 86. See statutory provisions; and cases infra notes 87-89. See also infra § 2076. 87. Terr. v. Hargrave, 1 Ariz. 95, 25 P 475 (where counsel was assigned him two days after his arraignment, but before he had pleaded); Peo. v. Miller, 137 Cal. 642, 70 P 735; Peo. v. Villarino, 66 Cal. 228. 5 P 154 (holding that it is sufficient if the information is given in the course of the arraignment); State v. Allen, 174 Mo. 689, 74 SW 839 (where counsel is assigned to him before the trial of his case begins). 88. State v. Moore, 61 Kan. 732, 60 P 748. 89. Mason v. State, 74 Tex. Cr. 256, 168 SW 115, AnnCas1917D 1094 (holding that where defendant's counsel was granted ten minutes to confer with witnesses, and could not be found after twenty-five minutes, whereupon the court arraigned defendant who was present and whose counsel returned during the reading of the indictment and entered a plea of not guilty, the absence of counsel did not render the arraignment erroneous). 90. Reg. v. St. George, 9 C. & P. 483, 38 ECL 285 (holding that a person who surrenders to take his trial on a charge of felony at the assizes must be tried at the bar of the court, and cannot take his trial at any other part of the court, even with the consent of the prosecutor). [a] Prisoners not allowed to occupy front benches of bar.-Where the prisoners were placed within the bar, and within a reasonable distance from their counsel who could constantly have free access to them and to whom the court stated that every delay of time for that purpose would be given cheerfully, and it was given, it was held that to place the prisoners in the very front benches of the bar by the side of their counsel would have been an indulgence inconvenient and unnecessary, and that the court did not err, under the circumstances of the case, in refusing it. U. S. v. Gibert, 25 F. Cas. No. 15,204, 2 Sumn. 19. 91. Lee v. State, 51 Miss. 566; Terr. v. Kelly, 2 N. M. 292: Poe v. State, 10 Lea (Tenn.) 673: Matthews v. State, 9 Lea (Tenn.) 128, 42 AmR 667; Harris Cr. L. pp 370, 371. [a] Thus it has been held that if the prisoner be brought into court ironed his fetters should be removed, 94 identification, but this is not now requisite.92 When arraigned he should give his true name;93 and if he fails to do so he cannot afterward object to a misnomer, although if given it must be substituted in place of the wrong name, and further proceedings must be had in that name.95 In cases of misdemeanor, calling to the bar seems not to be necessary.9 96 [717] (3) Reading Indictment. Except where, by statute, a copy of the indictment is required to be furnished to defendant,97 the indictment must be read to him in order that he may be informed of the charge against him.98 Although the rule is that the indictment should be read in full, yet if the formal concluding part, beginning "contrary to the form of the statute, etc., is not read, this will not vitiate a sentence." The indictment need not be read more than once, and it may be read to accused by his counsel, or he may be called upon to listen while the prosecuting attorney reads it to the jury, and if he is deaf and dumb, or unacquainted with the English language, it may be read and interpreted to him by a sworn interpreter. 99 [ 718] (4) Demanding Whether Guilty or Not Guilty. The indictment having been read, the clerk, addressing the prisoner, demands of him, "How say at least from his wrists, during arraignment and trial; and this even though he is considered dangerous and escape is feared. State v. Kring, 1 Mo. A. 438 [aff 64 Mo. 591]. [b] Chitty thinks the prisoner's fetters should not be removed until after he has pleaded. 1 Chitty Cr. L. p 418. 92. U. S. v. Pittman, 27 F. Cas. No. 16,053, 3 Cranch C. C. 289 (holding also that in order to preserve order and regularity the prisoner ought to be placed in the box for arraignment); State V. Weeden, 133 Mo. 70, 34 SW 473; Early v. State, 1 Tex. A. 248. 268, 28 AmR 409; 4 Blackstone Comm. p 322; 2 Hale P. C. p 219. [a] Holding up the hand for identification was never indispensable if it appeared to the court that the person before the bar was the person indicted. 4 Blackstone Comm. p 322; 2 Hale P. C. p 219. 93. State v. Burns, 8 Nev. 251. 94. State v. Winstrand, 37 Iowa 110; State v. White, 32 Iowa 17; State v. Burns, 8 Nev. 251; Wilcox v. State, 31 Tex. 586. [a] Sufficient identity.-Where a person was indicted by the name of Thomas Burns, and on arraignment gave his name as Thomas L. Burns, but after conviction moved for a new trial on the ground, supported by affidavit, that at the time of arraignment he was ignorant that he was named improperly in the indictment, and that his true name was Thomas L. Byrne. it was held that he was identified sufficiently and that he had no ground of complaint. State V. Burns, 8 Nev. 251. 95. Peo. v. Jim Ti, 32 Cal. 60; Peo. v. Kelly. 6 Cal. 210. [a] Thus an indictment of "E. Buchanan," who on arraignment pleads as "Amos Buchanan," may be amended accordingly. State v. Buchanan, 35 La. Ann. 89. 96. Reg. v. Lovett, 9 C. & P. 462, 38 ECL 273 (holding that a defendant who surrenders to take his trial on a charge of misdemeanor need not stand at the bar, but may be allowed a place at the table of the court). And see footnote to this case in which it is said that defendant in Reg. v. Vincent, 9 C. & P. 275, 38 ECL 169, who conducted his Own defense, was allowed to have a place at the table of the court, although he was in custody under a sentence of conviction. To same effect Reg. v. you, A B, are you guilty or not guilty?" Thereupon the prisoner either will move to quash the indictment, will demur to it, will stand mute, will confess by saying that he is guilty, or will plead to it. Formerly accused was also asked by what method he wished to be tried, but since trial by the country is now the only method, this question is unnecessary." Prior conviction. It is not error for the court to ask defendant whether he has been convicted before, as alleged in the indictment.8 [§ 719] f. Joint or Several Arraignment. Defendants jointly indicted may be arraigned separately, but more commonly they are arraigned together,10 although their trials may be separate;11 but, as the purpose of arraignment is to establish identity,12 where each is asked whether he is guilty or not, his answer is a valid plea, and it is not material that a separate trial is not granted.18 The verdict is a separate finding as to each, and judgment may be affirmed as to one and reversed as to the others.14 [§ 720] g. Waiver of Arraignment and Plea and Defects Therein. In some jurisdictions it has been held that one who is indicted for a felony cannot, either personally or by attorney, waive arraignment and plea.15 Generally, however, arraignment Carlile, 6 C. & P. 636, 25 ECL 614. 97. Minich v. Peo., 8 Colo. 440, 9 98. 2 Hale P. C. p 219. [b] A statement in the record 99. State v. Crane, 121 La. 1039, 46 S 1009. 1. Reg. v. Dowling, 3 Cox C. C. 509. 2. Stewart v. State, 111 Ind. 554, 13 NE 59. 3. Bateman v. State, 64 Miss. 233, 1 S 172. And see infra § 2051. [a] In Kentucky under Cr. Code Prac. § 154, providing that "an arraignment is a reading of the indictment by the clerk to defendant, and asking him if he pleads guilty or not guilty to the indictment," a reading of the indictment to the jury by the commonwealth's attorney in the hearing of defendant was a substantial compliance with the statute. Utterback v. Com., 105 Ky. 723, 49 SW 479, 20 KyL 1515, 88 AmSR 328. 4. Com. v. Hill, 14 Mass. 207; Reg. v. Pritchard, 7 C. & P. 303, 32 ECL 626. [a] Thus, (1) where a prisoner, on his arrignment, stood mute, the court ordered a jury to determine whether the prisoner was mute because of malice or by the visitation of God; and the jury finding the prisoner mute by the visitation of God, and it appearing to the court that the prisoner could be informed by means of signs, he was arraigned and pleaded in that way. Rex v. Jones, 1 Leach C. C. 120. (2) So in another case where the prisoner was found mute, but could read and write, the indictment was handed to him, with the usual questions written upon paper, and after he had pleaded, and stated in writing that he had no objection to the jury, the trial proceeded, and the judge's notes were handed to him after the examination of each witness, and he was asked in writing if he had any questions to put. Thompson's Case, 2 Lew. C. C. 137. 5. Elick v. Terr., 1 Wash. T. 136. 6. 1 Chitty Cr. L. p 416. [a] Record suficient to show question asked.-Where the record on appeal from a conviction shows that accused, "in response to the court," pleaded guilty, it sufficiently appears that accused was asked whether he pleaded guilty or not guilty, as required by a statute in relation to arraignment. Peo. v. Miller, 137 Cal. 642, 70 P 735. 7. U. S. v. Gibert, 25 F. Cas. No. 15,204, 2 Sumn. 19. [a] Choosing mode of trial.—(1) Formerly, after issue joined, the clerk asked the prisoner, "How will you be tried?" giving him his choice of the various methods of trial employed at common law. But since. at present, there can be no mode of trial but by the country, the prisoner replies, "By God and my country," to which the clerk rejoins, "God send you a good deliverance.' 1 Chitty Cr. L. p 417. (2) The appeal to accused, "How will you be tried?" and his answer, "By my country," is a form handed down from the period when the party had the privilege of selecting trial by jury or by "ordeal," the "corsned," or by "battle." and to put himself upon the country was the formal mode of selecting a trial by jury. Price v. State, 8 Gill (Md.)_295. 8. Peo. v. McGregar, 88 Cal. 140, 26 P 97; Peo. v. King, 4 Cal. A. 213, 87 P 400. 9. Moore v. State, 44 Fla. 146, 32 S 795; State v. Goodson, 116 La. 388, 40 S 771; State v. Stair, 87 Mo. 268, 56 AmR 449. 10. Moore v. State, 44 Fla. 146, 32 S 795; Rawlins v. State, 124 Ga. 31, 52 SE 1 [aff 201 U. S. 638, 26 SCt 560, 50 L. ed. 899]; Whitehead Com., 19 Gratt. (60 Va.) 640. v. 11. Rawlins v. State, 124 Ga. 31, 52 SE 1 [aff 201 U. S. 638, 26 SCt 560, 50 L. ed. 899]; Whitehead v. Com., 19 Gratt. (60 Va.) €40. 12. See supra § 711. AmR 433; Miller v. Peo., 47 Ill. A. 472. Miss.-Wilson v. State, 42 Miss. 639. Nebr.-Burroughs V. State, 94 Nebr. 519, 143 NW 450, 452, AnnCas 1915C 1070. Or.-State v. Walton, 51 Or. 574, 91 P 495. Vt.-State v. Drown, 85 Vt. 233, 81 A 641. [a] The public has an interest in the trial of all persons accused of a crime, from which it follows that, in proceedings involving the deprivation of the life or liberty of a person, that which the law makes essential cannot be dispensed with or affected either by the express or the implied consent of accused. State v. Walton, 51 Or. 574, 91 P 490. 16. Ky.-Com. v. Neat, 89 Ky. 241, 12 SW 256, 11 KyL 434. Md.-Salfner v. State, 84 Md. 299, 35 A. 885. Pa. Com. v. Schmeck, 25 Pa. Dist. 973. S. C.-State v. Brock, 61 S. C. 141, 39 SE 359. Wis.-Douglass v. State, 3 Wis. 820. 17. U. S. Garland v. Washington, 232 U. S. 642, 34 SCt 456, 58 L. ed. 772 (infra this note). Ark.--Davidson v. State, 108 Ark. 191, 158 SW 1103, AnnCas1915B 436; Hobbs v. State, 86 Ark. 360, 111 SW 264 [overr Baker v. State, 39 Ark. 180; Perry v. State, 37 Ark. 54; Lacefield_v. State, 34 Ark. 275, 36 AmR 8]; Brewer v. State, 72 Ark. 145, 78 SW 773; Hayden v. State, 55 Ark. 342, 18 SW 239; Moore v. State, 51 Ark. 130, 10 SW 22; Ransom v. State, 49 Ark. 176. 4 SW 658. Ga.-Hudson v. State, 117 Ga. 704, 45 SE 66; Bryans v. State, 34 Ga. 323; Perry v. State, 19 Ga. A. 619, 91 SE 939; Brown v. State, 19 Ga. A. 619, 91 SE 939; Waller v. State, 2 Ga. A. 636, 58 SE 1106. Ky. Barnard v. Com., 8 Ky. Op. 760. Mich.-Peo. v. Weeks, 165 Mich. 362, 130 NW 697. Mo.-State V. O'Kelley, 258 Mo. 345, 167 SW 980, 52 LRANS 1063. N. M.-State v. Klasner, 18 N. M. 474, 145 P 679, AnnCas1917D 824. Wis. Hack v. State, 141 Wis. 346, 124 NW 492, 45 LRANS 664. And see State v. Emile, 140 La. 829, 74 S 163 (where it was said: "In a criminal prosecution wherein the defendant may waive the reading of the bill of indictment or information, he cannot successfully complain, after conviction and in a motion in arrest of judgment, that the officer who read to him the indictment or information on arraignment was not qualified to act as clerk of court"). [a] Reason for rule.-"Technical objections of this character were undoubtedly given much more weight formerly than they are now. Such rulings originated in that period of English history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature. Under that system the courts were disposed to require that the technical forms and methods of pro 19 when it appears that defendant was present in per- cedure should be fully complied with. But with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away, and we think that the better opinion, when applied to a situation such as now confronts us, was expressed in the dissenting opinion of Mr. Justice Peckham, speaking for the minority of the court in the Crain Case, when he said 'Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which under the circumstances would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if the defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.' Holding this view, notwithstanding our reluctance to overrule former decisions of this court, we now are constrained to hold that the technical enforcement of formal rights in criminal procedure sustained in the Crain Case is no longer required in the prosecution of offenses under present systems of law, and so far as that case is not in accord with the views herein expressed it is necessarily overruled." Garland V. Washington, 232 U. S. 642, 646, 34 SCt 456, 58 L. ed. 772. For similar reasoning see Hack v. State, 141 Wis. 346, 124 NW 492, 45 LRANS 664. 18. State v. Glave, 51 Kan. 330, 33 P 8; State v. Robinson, 36 La. Ann. 873; Goodin v. State, 16 Oh. St. 345. 19. U. S.-U. S. v. Molloy, 31 Fed. 19. Cal.-Peo. v. Lightner, 49 Cal. 226. Ga.-Wells v. Terrell, 121 Ga. 368, 49 SE 319; Hudson v. State, 117 Ga. 704, 45 SE 66; Waller v. State, 2 Ga. A. 636, 58 SE 1106. Ill. Avery v. Peo., 11 Ill. A. 332; Spicer v. Peo., 11 Ill. A. 294. Ind.-Molihan v. State, 30 Ind. 266. Iowa.-State v. Thompson, 95 Iowa 464, 64 NW 419; State v. Bowman, 78 Iowa 519, 43 NW 302; State v. Jones, 70 Iowa 505, 30 NW 750; State v. Hayes, 67 Iowa 27, 24 NW 575; State v. Greene, 66 Iowa 11, 23 NW 154; State v. Winstrand, 37 Iowa 110. Kan.-State v. Cassady, 12 Kan. 550. Miss.-Bateman v. State, 64 Miss. 233, 1 S 172. Mo.-State v. Grate, 68 Mo. 22. N. Y.-Peo. v. Bradner, 107 N. Y. 1, 13 NE 87; Peo. v. Tower, 17 NYS 395 [aff 135 N. Y. 457, 32 NE 145]; Peo. v. Frost, 5 Park. Cr. 52. S. D.-State v. Reddington, 7 S. D. 368, 64 NW 170. Wash.-State v. Straub, 16 Wash. 111, 47 P 227. [a] Inquiry by court.-Inquiry by the court whether the prisoner will waive arraignment, to which the prisoner's counsel assents, is not er Ind.-Meyers V. State, 156 Ind. 388, 59 NE 1052; Stewart v. State, 111 Ind. 554, 13 NE 59; Johns v. State, 104 Ind. 557, 4 NE 153; Turpin v. State, 80 Ind. 148; Feriter v. State, 33 Ind. 283; Molihan v. State, 30 Ind. 266; Sohn v. State, 18 Ind. 389. Ind. T.-Gaines v. U. S., 1 Ind. T. 296, 37 SW 98. Iowa.-State v. Thompson, 95 Iowa 464, 64 NW 419; State v. Winstrand, 37 Iowa 110. Ky.-Utterback v. Com., 105 Ky. 723, 49 SW 479, 20 KyL 1515, 88 AmSR 328. Mo.-State v. Weeden, 133 Mo. 70, 34 SW 473; State v. Grate, 68 Mo. 22; State v. Braunschweig, 36 Mo. 397. Oh.-Goodin v. State, 16 Oh. St. 344. Okl.-Jones v. Terr., 5 Okl. 536, 49 P 934. S. C.-State v. Brock, 61 S. C. 141, 39 SE 359. Tex.-Wilson v. State, 17 Tex. A. 525. Wash.-State v. Straub, 16 Wash. 111, 47 P 227. [a] A demurrer to the indictment waives arraignment. Kincade v. State, 14 Ga. A. 544, 81 SE 910. [b] Merely striking from the printed waiver on the back of an accusation or indictment the words, "waived formal arraignment," will not entitle accused, after verdict, to take advantage of the fact that he was not formally arraigned when, at the time the plea was entered and before the trial was begun, the attention of the court was not called to the fact that accused had not waived arraignment. Harris v. State, 11 Ga. A. 137, 138, 74 SE 895. 21. U. S. Garland V. Washington, 232 U. S. 642, 34 SCt 456, 58 L. ed. 772 [overr Crain v. U. S., 162 U. S. 625, 16 SCt 952, 40 L. ed. 1097]: U. S. v. Molloy, 31 Fed. 19. Ark.-Davidson v. State, 108 Ark. 191, 158 SW 1103, AnnCas1915B 436. Ga.-Wells v. Terrell, 121 Ga. 368, 49 SE 319; Hudson v. State, 117 Ga. 704, 45 SE 66; Tarver v. State, 95 Ga. 222. 21 SE 381; Bryans v. State, 34 Ga. 323: Harris v. State, 11 Ga. A. 137, 74 SE 895; Waller v. State, 2 Ga. A. 636, 58 SE 1106. Ill.-Peo. v. Melville, 185 Ill. A. 214 [rev on other grounds 265 Ill. 176. 106 NE 622]. Ind. Molihan v. State, 30 Ind. 266. Ind. T.-Gaines v. U. S., 1 Ind. T. 296, 37 SW 98. Iowa.-State v. Thompson, 95 Iowa 464, 64 NW 419; State v. Hayes, 67 Iowa 27, 24 NW 575; State v. Greene, 66 Iowa 11, 23 NW 154. Kan.-State v. Baker, 57 Kan. 541, 46 P 947; State v. Glave, 51 Kan. 330, 33 P 8; State v. Cassady, 12 Kan. 550; State v. Lewis, 10 Kan. 157. Ky.-Barnard v. Com., 8 Ky. Op. 760. Mich.-Peo. v. Weeks, 165 Mich. 362, 130 NW 697. Miss. Bateman v. State, 64 Miss. 233, 1 S 172. raign defendant so as to prevent a waiver of arraignment.22 In some jurisdictions by express statute arraignment may be dispensed with by defendant's consent.23 Where an arraignment may be waived, a refusal to permit it is harmless error.24 27 Any irregularity in an arraignment, 25 such as failure to deliver a copy of the indictment,26 or to read the same to defendant,2 or delivering the same to the attorney for accused, instead of to accused himself,28 is waived by failure to object thereto in the trial court. [ 721] h. Refusal or Failure to Plead. In England, by the early common law, where accused on a trial for felony obstinately refused to plead after warning and a respite that he might consider the matter, he could be sentenced to solitary confinement in a dark cell upon bread and water, his body loaded with chains, and there confined until he answered.29 By statute 30 it was enacted that every Mo.-State v. Loesch, 180 SW 875; State v. O'Kelley, 258 Mo. 345, 167 SW 980, 52 LRANS 1063; State v. Hoffman, 70 Mo. A. 271. Mont.-State v. Gordon, 35 Mont. 458, 463, 90 P 173 [cit Cyc]. N. M.-State v. Klasner, 19 N. M. 145 P 679 AnnCas1917D 824. N. Y.-Peo. v. Tower, 17 NYS 395 [aff 135 N. Y. 457, 32 NE 145]; Peo. v. McHale, 15 NYS 496. Okl.-Jones v. Terr., 5 Okl. 536, 49 P 934; Hast v. Terr., 5 Okl. Cr. 162, 114 P 261. S. C.-State v. Brock, 61 S. C. 141, 39 SE 359. S. D.-State v. Reddington, 7 S. D. 368, 64 NW 170. Wash.-State v. Straub, 16 Wash. 111, 47 P 227. person who should stand mute on arraignment should 158 SW 283 (statutory presumption | 511. 24. Wood v. State, 92 Ind. 269; [a] Failure to manifest intention to waive. The denial of the privilege of defendant to waive an arraignment, where he does not manifest his intention so to do by pleading and going to trial, but asks time to plead specially, is not reversible error. State v. Pierce, 77 Iowa 245, 42 NW 181. 25. Peo. v. Suesser, 142 Cal. 354, 75 P 1093. 26. Johnson v. State, 43 Ark. 391; 27. U. S.-Gardes v. U. S., 87 Fed. Mont.-State v. Gordon, 35 Mont. 458, 463, 90 P 173 [cit Cyc]. N. Y.-Peo. v. Carter, 88 Hun 304, 34 NYS 764. [a] With the case of a second information, on which accused went to trial, without objection that issue had not been joined therein by plea176, 4 SW 658. of not guilty, the court, in applying Fla.-Dixon v. State, 13 Fla. 631. the rule, said: "The object of arraignment being to inform the accused of the charge against him and obtain an answer from him, was fully subserved in this case, for the accused had taken objections to the second information and was put to trial before a jury upon that information in all respects as though he had entered a.. plea of not guilty." Garland v. Washington, 232 U. S. 642, 644, 34 SCt 456, 58 L. ed. 772 [overr Crain v. U. S., 162 U. S. 625, 16 SCt 952, 40 L. ed. 1097]. [b] In California (1) it was formerly held that a defendant in a felony case, who had been put upon trial for the offense charged without a formal plea of not guilty having been entered by him to the indictment or information, had not been given a legal trial. Peo. v. Monaghan, 102 Cal. 229, 36 P 511; Peo. v. Gaines, 52 Cal. 479; Peo. v. Corbett, 28 Cal. 328; Peo. v. Tomsky, 20 Cal. A. 672, 130 P 184. (2) But since the adoption of Const. art 6 § 41⁄2 the rule of the text applies. Peo. v. Tomsky, supra. [c] In Wisconsin the right of arraignment and plea is waived by accused in all except capital cases by silence when he ought to demand the same, where it appears that he is fully informed as to the charge against him, and is not otherwise prejudiced in the trial by the omission of the formality. Hack v. State, 141 Wis. 346, 124 NW 492, 45 LRANS 644 [overr Davis v. State, 38 Wis. 487; Douglass v. State, 3 Wis. 820; Anderson v. State, 3 Pinn. 367]. 22. Thompson v. State, (Ga. A.) 92 SE 959. 23. Roper v. U. S., 7 Ind. T. 185, 104 SW 584; Bishoff v. Com.. 123 Ky. 340. 96 SW 538, 29 KvL 770; Hendrickson v. Com., 64 SW 964, 23 KyL 1191: Utterback v. Com., 105 Ky. 723, 49 SW 479, 20 KyL 1515, 88 AmSR 328; Davis v. State, 70 Tex. Cr. 563, [16 C. J.-26] Okl. Shivers v. Terr., 13 Okl. 466, 74 P 899. 28. Peo. v. Suesser, 142 Cal. 354, 75 P 1093. 29. 4 Blackstone Comm. pp 325327; 2 Hale P. C. p 319; 2 Hawkins P. C. c 30. 30. St. 12 Geo. III c 20. 31. St. 7 & 8 Geo. IV c 28 § 2. [a] Construction of English stat- 33. Com. v. Moore, 9 Mass. 402; Rex v. Mercier, 1 Leach C. C. 218. 34. Com. v. Braley, 1 Mass. 103; Ala.-Howard V. State, 165 Ala. Cal.-Peo. V. Emerson, 130 Cal. 562, 62 P 1069; Peo. v. Samario, 84 Cal. 484, 24 P 283; Peo. v. Bowman, 81 Cal. 566, 22 P 917; Peo. v. Thompson, 4 Cal. 238. Ga.-Hudson v. State, 117 Ga. 704, 45 SE 66; Johnson v. State, 7 Ga. A. 48, 66 SE 148. Hawaii.-Hawaii v. Oishi, 9 Hawaii 641: Hawaiian Islands v. Hering, 9 Hawaii 181. Ill.-Johnson v. Peo., 22 Ill. 314; Peo. v. McCarthy, 176 Ill. A. 499; Persefield v. Peo., 100 II. A. 488. See also Mooney v Peo., 96 Ill. A. 622 (holding that the rule is applicable in bastardy proceedings). Ind.-Barrett v. State, 175 Ind. 112, 93 NE 543; Johns v. State, 104 Ind. 557, 4 NE 153; Weaver v. State, 83 Ind. 289. Iowa.-State v. Thompson, 95 Iowa 464, 64 NW 419; State v. McCombs, 13 Iowa 426; Powell v. U. S., Morr. 17. La.-State v. Shields, 33 La. Ann. 1410. Mass.-Com. v. Quirk, 155 Mass. 296, 29 NE 514; Com. v. McKenna, 125 Mass. 397; Com. v. Lannan, 13 Allen 563; Ellenwood V. Com., 10 Metc 222. Mich.-Peo. V. Fisher, 144 Mich. 570, 108 NW 280; Peo. v. Bringard, 39 Mich. 22, 23 AmR 344. Mo.-State v. Gould, 261 Mo. 694, 170 SW 868, AnnCas1916E 855; State v. Kring. 74 Mo. 612; State v. Andrews, 27 Mo. 267. Mont.-State v. Clancy, 20 Mont. 498, 52 P 267. Nev.-State v. Williams, 31 Nev. 360, 102 P 974. N. J.-State v. Savage, 79 N. J. L. 583. 76 A 1079. N. Y.-Stokes v. Peo., 53 N. Y. 164, 13 AmR 492, 1 Cow. Cr. 557. Oh-Billigheimer v. State, 32 Oh. St. 435. Pa.-Com. v. Place, 153 Pa. 314, 26 A 620. Tenn.-Link v. State, 3 Heisk. 252. Tex.-Noble v. State, 50 Tex. Cr. 581, 99 SW 996; Sims v. State, 49 Tex. Cr. 199, 91 SW 579; Gonzales v. State, (Cr.) 50 SW 1018; McGrew v. State, 31 Tex. Cr. 336, 20 SW 740. Wis.-Anderson v. State, 3 Pinn. 367. Eng.-Reg. v. Bernard, 1 F. & F. 240. [a] Reason for rule.-"It is necessary that such a course should be pursued in order to protect the rights of the accused where he is often too ignorant to know and fully comprehend what his rights are under the circumstances which surround him." Persefield v. Peo., 100 Ill. A. 488, 490. [b] After rejection of invalid plea. -Where the prisoner, after the rejection of an invalid plea in bar offered by him, refuses to plead further, a plea of not guilty is to be entered for him, under Gen. St. c 171 raigned upon information or complaint as well as persons indicted.36 When no evidence is offered to support a criminal complaint, a plea of guilty is indispensable to sustain a judgment of conviction, and defendant cannot be convicted without evidence when he refuses to plead.37 Objection not waived. The refusal of defendant to plead and an entry of a plea of not guilty does not admit the jurisdiction of the court nor waive objections to the sufficiency or validity of the complaint.38 47 [§ 723] b. By Whom Made. The general rule seems to be that in felony cases accused must appear and plead in person,46 while in misdemeanor cases this properly may be done by an attorney in his absence. A distinction has been made, however, in some cases, making it necessary that the plea of guilty should be entered by defendant personally,45 but allowing that of not guilty to be entered by attorney. 49 [§ 722] 2. Pleas in General39-a. Names and Nature of the Several Pleas. The pleas which may be made upon arraignment are thus classified: (1) Pleas to the jurisdiction, by which accused denies the authority of the court to try him; (2) declinatory pleas which are now obsolete, but which anciently consisted of the plea of sanctuary and the plea of clergy; (3) pleas in abatement of the indictment, which may be either for defects in the indictment which are apparent of record, or for defects which are not apparent of record, as for example the plea of misnomer; (4) special pleas in bar, by which defendant shows extrinsic facts by reason of which the indictment is not maintainable; and (5) the plea of the general issue by which he claims that he is not guilty.10 Defendant also may plead guilty or interpose the plea of nolo contendere, which is an implied confession;41 and he may demur to the accusation as insufficient in law, or may move to quash the same, or to dismiss the prosecution.42 Strictly speaking, however, the latter are not pleas. $ 29. Com. v. Lannan, 13 Allen he unreasonably and improperly | tions [22 Cyc 427]. (Mass.) 563. 36. In re Smith, 13 Fed. 25; Com. v. McKenna, 125 Mass. 397; Ellenwood v. Com., 10 Metc. (Mass.) 222. 37. Ex p. Walton, 2 Okl. Cr. 437, 101 P 1034. 38. Peo. v. Gregory, 30 Mich. 371. 39. Necessity for arraignment and plea see supra § 712. 40. 2 Hale P. C. p 236; 1 Starkie Cr. Pl. (2d ed) pp 310-320. 41. See infra § 739. 42. See Indictments and Informations [22 Cyc 412 et seq, 427 et seq]. 43. Doyal v. State, 70 Ga. 134; Hurst v. State, 11 Ga. A. 754, 76 SE 78; State v. Michel, 111 La. 434, 35 S 629. 44. Peo. v. Harding, 53 Mich. 481, 19 NW 155. 45. U. S. v. Barber, 219 U. S. 72, 31 SCt 209, 55 L. ed. 99. 46. La.-State v. Lartique, 6 La. Ann. 404. Miss. -Cachute v. State, 50 Miss. A. 336. Va.-Sperry v. Com., 9 Leigh (36 Va.) 623. Wash.-Elick v. Terr., 1 Wash. T. 136. W. Va.-State v. Conkle, 16 W. Va. 736; Younger v. State, 2 W. Va. 579, 98 AmD 791. 47. Peo. v. Ebner, 23 Cal. 158; Peo. v. Welsh, 88 App. Div. 65, 84 NYS 703, 14 NYAnnCas 124. [ 724] c. Number of Pleas and Successive Pleas. At common law, defendant was entitled only to a single plea;50 and it may be that, by the strict rules of the common law, a defendant in any criminal case cannot, as matter of right, file more than one such plea.51 The statute of Anne,52 which does not apply to criminal cases, has not enlarged the right of pleading in such cases;53 but the rule was relaxed in case of felonies. In prosecutions for a misdemeanor, in the absence of a statute, if defendant plead in abatement,5 or specially in bar,55 or if he demur," he cannot plead not guilty, either at the same time or after the issue on the plea or the demurrer has been decided against him; but he may be sentenced as upon a conviction,57 unless the court 54 57. U. S.-U. S. v. Shorey, 27 F Conn.-Wickwire v. State, 19 Conn. 477. See State v. Ward, 49 Conn. 429 (a prosecution for felony, however). Mass.-Com. v. Blake, 12 Allen 188. Nebr.-Marshall v. State, 6 Nebr. 120. 29 AmR 363. withholds his consent. 4 Sufficient [b] Refusal to plead.-One ac- 48. See infra § 735. Peo. v. McCoy, 71 Cal. 395, 12 Effect of standing mute see infra § 721. Waiver of arraignment see infra § 50. Com. V. Blake. 12 Allen [a] Discretion of court and rules for exercising discretion.-(1) "It is in the discretion of the court, to allow one indicted for a misdemeanor to plead and defend, in his absence, by attorney. This discretion will be U. S. v. Richardson, 28 Fed. regulated by the following circum- 61. stances. 1 That it is not an offence 52. St. 4 Anne c 16. for which imprisonment must be in53. Com. V. Blake, 12 Allen flicted. 2 The Court must be satis- (Mass.) 188; State v. Potter, 61 N. filed, that the nature of the case, and its circumstances, are such that im- 1 prisonment will not be inflicted. 3 The District Attorney must consent, or it must appear to the Court that C. 338: Re Strahan, 7 Cox C. C. 85; See Indictments and Informa N. C.-State v. Potter, 61 N. C. 338. Tenn.-State v. Copeland. 2 Swan 626; Hill v. State, 2 Yerg. 248. Eng. Reg. v. Charlesworth, 1 B. & S. 460, 101 ECL 460, 121 Reprint 786; Re Strahan, 7 Cox C. C. 85; Kirton v. Williams, Cro. Eliz. 495. 78 Reprint 746; Rex v. Gibson, 8 East 107, 103 Reprint 284: 1 Chitty Cr. L. p 435; 2 Hawkins P. C. c 31 § 7. But see State v. Greenwood, 5 Port. (Ala.) 474, 483 (where the court said: "But the right thus to plead, exists at common law. In 1 Chitty's Criminal Law, 434, this is denied; but he cites no adjudged case in support of his opinion, whilst the contrary doctrine is held by Hawkins, a much higher author on criminal law, supported by high authority. This seems to be the better law, and we do not feel warranted in depriving the prisoner of any defence secured to him by the common law, and not repealed by statute"). [a] Пlustrations.—(1) It has been held that the rule stated in the text applies to a plea of former conviction, acquittal, or jeopardy and to a plea of not guilty (Marshall v. State, 6 Nebr. 120, 29 AmR 363; State v. Potter, 61 N. C. 338; State v. Copeland, 2 Swan (Tenn.) 626; Hill v. State, 2 Yerg. (Tenn.) 248; Reg. v. Charlesworth, 1 B. & S. 460, 101 ECL 460, 121 Reprint 786; Reg. v. Gilmore, 15 Cox C. C. 85. But see in a case of felony Thompson v. U. S., 155 U. S. 271, 15 SCt 73, 39 L. ed. 146), (2) unless the rule has been changed by statute (Crippen v. State, 3 Heisk. (Tenn.) 25). (3) The rule has also been applied to: Other special pleas in bar and the plea of not guilty. Com. v. Blake, 12 Allen (Mass.) 188; |