Hack v. State, 141 Wis. 346.

2. By a singular oversight the defendant was not formally arraigned in the circuit court and never pleaded to the information. An information in due form was filed; the jury was called and sworn; witnesses for both the state and the defendant were examined and cross-examined; the jury was charged by the court and rendered its verdict, in all respects as though issue had been formally joined. Inasmuch as the information was valid and the jury duly sworn and charged with the defendant's deliverance, he was put in jeopardy, so that had he been acquitted he could not have been again prosecuted. He knew perfectly well the offense with which he was charged, and was allowed to make his defense just as fully and effectively as if a plea of not guilty had been made; and the question now is whether the inadvertent omission of arraignment and plea, which has not in the least affected any substantial right of the defendant, should be held fatal to the judgment.

It is freely conceded that the early Wisconsin decisions answer this question in the affirmative. Anderson v. State, 3 Pin. 367; Douglass v. State, 3 Wis. 820; Davis v. State, 38 Wis. 487. See, also, Crain v. U. S. 162 U. S. 625, 16 Sup. Ct. 952, where the authorities are reviewed and the doctrine contended for by the defendant fully sustained by a divided court. It must also be conceded that it is held by the supreme court of the United States in the Crain Case that arraignment and plea are essential to due process of law, guaranteed to the citizen by the XIVth amendment. A state could not therefore pass a law providing for trial without arraignment or plea; but that does not necessarily affect the question whether a citizen may not effectually waive that right. This court has held that constitutional rights may be waived by the defendant, except perhaps in capital cases. Thus an accused person has the absolute constitutional right to a trial by a jury, which means a body of twelve competent jurymen; yet this court held, as early as the case of State v. Vogel, 22 Wis. 471, that by not exercising his right of challenge the defendant waived. all objections to the qualifications of jurors, and a verdict of

Hack v. State, 141 Wis. 346.

guilty would stand notwithstanding the fact that one of the jurors was an alien and the further fact that his alienage was not known to the defendant. This doctrine was approved in Flynn v. State, 97 Wis. 44, 72 N. W. 373 (without, however, citing the Vogel Case), and even carried further, for the Flynn Case was a capital case, and the court said that the defendant's announcement that he accepted the jury was “in effeet the withdrawing of all previous objections to the competency of the jurors, and a consent to be tried by that jury which could not afterwards be withdrawn." This rule has been followed in the following cases: In re Roszcynialla, 99 Wis. 534, 75 N. W. 167; Emery v. State, 101 Wis. 627, 78 N. W. 145; Cornell v. State, 104 Wis. 527, 80 N. W. 745; Schwantes v. State, 127 Wis. 160, 106 N. W. 237; and Okershauser v. State, 136 Wis. 111, 116 N. W. 769.

In the case of In re Staff, 63 Wis. 285, 23 N. W. 587, it was held that a statute permitting a defendant to waive a jury trial was not unconstitutional, and Justice LYON, in the opinion in that case, says (on p. 294) sec. 7, art. I [of the constitution], "confers many rights upon a person accused of crime, every one of which he may waive, without authority of statute, as has often been judicially determined, except the right to be tried by a jury. Such waiver may be express, or it may be by failure to make due objection and exception." He then makes an elaborate enumeration of the many rights conferred which the prisoner may waive, which is worth examination. In IIill v. State, 17 Wis. 675, and Stoddard v. State, 132 Wis. 520, 112 N. W. 453, it was held that, following the same principle, a defendant might waive his right to be present when the verdict was returned, and did so waive it by absenting himself voluntarily from the room when the jury came in. It is true that it was held in State v. Lockwood, 43 Wis. 403, that the right of the accused to a jury trial could not be waived, and this was followed in Jennings v. State, 134 Wis. 307, 114 N. W. 492, when it was held that the defendant

Hack v. State, 141 Wis. 346.

could not agree to a trial by eleven jurymen. As said in Okershauser v. State, supra, this rule, however, is not to be extended.

It must be conceded, therefore, that many constitutional guaranties may be waived by the accused in all criminal actions, except capital cases, and the question here presented is whether the court should follow the early cases holding that arraignment and plea cannot be waived, or abandon that principle. Of course no rule of property is involved, and so the court is measurably free to establish another rule if it seem that the former rule is unsound or not supported by the better

reason.

The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel, and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. Under such circumstances it was well, perhaps, that such a rule should exist, and well that every technical requirement should be insisted on, when the state demanded its meed of blood. Such a course raised up a sort of a barrier which the court could utilize when a prosecution was successful which ought not to have been successful, or when a man without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story, had been unjustly convicted, but yet under the ordinary principles of waiver, as applied to civil matters, had waived every defect in the proceedings.

Thanks to the humane policy of the modern criminal law we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defense. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the state, and may have his witnesses summoned and paid for by the state;

Hack v. State, 141 Wis. 346.

not infrequently he is thus furnished counsel more able than the attorney for the state. In short, the modern law has taken as great pains to surround the accused person with the means to effectively make his defense as the ancient law took pains to prevent that consummation. The reasons which in some sense justified the former attitude of the courts have therefore disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principle based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misdemeanor, who comes into court with his attorney, fully advised of all his rights and furnished with every means of making his defense, should not be held to waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking for it.

Surely the defendant should have every one of his constitutional rights and privileges, but should he be permitted to juggle with them? Should he be silent when he ought to ask for some minor right which the court would at once give him, and then when he has had his trial, and the issue has gone against him, should he be heard to say there is error because he was not given his right? Should he be allowed to play his game with loaded dice? Should Justice travel with leaden heel because the defendant has secretly stored up some technical error not affecting the merits, and thus secured a new trial because forsooth he can waive nothing? We think not. We think that sound reason, good sense, and the interests of the public demand that the ancient strict rule, framed originally for other conditions, be laid aside, at least so far as all prosecutions for offenses less than capital are concerned. We believe it has been laid aside in fact (save for the single exception that trial by a jury of twelve cannot be waived unless authorized by a specific law) by the former decisions of this court.

It is believed that this court has uniformly attempted to

Hack v. State, 141 Wis. 346.

disregard mere formal errors and technical objections, not affecting any substantial right, and to adhere to the spirit of the law which giveth life rather than to the letter which killeth. It may not always have succeeded; it is intensely human, but since the writer has been here he knows that the attempt has been honestly made.

In this line the court is glad to welcome legislative assistance and approval. By ch. 192, Laws of 1909 (sec. 3072m, Stats.), it is provided that no judgment, civil or criminal, shall be set aside or new trial granted for any error in admission of evidence, direction of the jury, or any error in pleading or procedure, unless it shall appear that the error complained of has affected the substantial rights of the party complaining. How much this adds to the provisions of sec. 2829, which has been on the statute books since 1858, is not entirely clear. At least it shows the legislative intent to specifically apply the law to criminal actions. Its terms are clear, and will unquestionably assist the court in its effort to do substantial justice in all actions, either civil or criminal, without regard to immaterial errors or inconsequential defects. This court will loyally stand by this law, and will earnestly endeavor to administer it so as to do equal and exact justice so far as human effort can accomplish that end.

Our conclusion is that the doctrine of Douglass v. State, 3 Wis. 820, and the cases following it, should be overruled. The principle now declared is that the right of arraignment and plea will be waived by the defendant by his silence when he ought to demand it, in all cases (except capital cases) where it appears that he is fully informed as to the charge against him and is not otherwise prejudiced in the trial of the case by the omission of that formality. Other Code states so hold. People v. Osterhout, 34 Hun, 260; People v. Bradner, 107 N. Y. 1, 13 N. E. 87; State v. Cassady, 12 Kan. 550; State v. Straub, 16 Wash. 111, 47 Pac. 227; Hudson v. State, 117 Ga. 704, 45 S. E. 66.

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