if he is fully informed as to the charge and is not otherwise prejudiced in the trial of the case by the omission of that formality.19 71. Failure to Arraign until after Commencement of Trial.-The proper procedure in criminal cases is to arraign the defendant before impaneling and swearing the jury, and if this is not done it is an error which at common law, it seems, is not cured merely by arraigning him and taking his plea after discovery of the omission and during the progress of the trial. But a failure to arraign at the proper time is not a ground for discharge. Such a rule could result only from holding that impaneling the jury and proceeding with the trial, without arraigning the defendant, places him in jeopardy. And this is true although the case is a capital one. The courts are not in accord as to just what course should be pursued in case it is discovered that this necessary formality has been overlooked. In some jurisdictions it is held to be the duty of the trial court to discharge the jury and begin the trial anew, first arraigning the prisoner, then selecting and swearing the jury, and that a failure to follow this procedure is prejudicial error requiring a new trial. In other jurisdictions it is held that the error may be cured by arraigning the defendant, reswearing the same jury, and reswearing and re-examining any witness who has already been examined. In still other jurisdictions it is possible to arraign the defendant and enter his plea, after the jury has been impaneled and sworn, without reswearing the jury. VII. PLEA In General 72. Necessity. When a defendant is arraigned, he must plead or confess the truth of the charge. At common law, if a defendant. arraigned for treason or felony answered nothing at all, answered irrelevantly, or on pleading not guilty refused to put himself upon the country, he was said to "stand mute." Considerable refinement. of learning was attained in determining the different consequences of standing mute for different reasons, such as obstinacy, dumbness, insanity, idiocy, ignorance of the language used in the proceedings, etc., the chief interest of which at the present time is historical. If a defendant stands mute nowadays, the court may enter a plea of not guilty and proceed with the trial. In some jurisdictions a failure of the court to enter a plea for the defendant does not affect the trial 19. Hack v. State, 141 Wis. 346, 124 N. W. 492, 45 L.R.A. (N.S.) 664 (overruling some earlier Wisconsin cases). 1. State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 A. S. R. 213. Note: 27 L.R.A. (N.S.) 1181. 4. United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L.R.A. (N.S.) 1181. 5. Parkinson v. People, 135 III. 401, 25 N. E. 764, 10 L.R.A. 91. Note: 27 L.R.A. (N.S.) 1182. The and judgment if the defendant has announced himself ready for trial. A plea is the matter which the accused, on his arraignment, alleges in answer to the charge against him. In every criminal case there must be a plea by the defendant or the equivalent of one. purpose of a plea is, of course, to make an issue. Without an issue, there is nothing to be tried and nothing on which the verdict of a jury or judgment and sentence of a court can properly be predicated.10 Orderly procedure demands that the plea be entered after his arraignment and before impaneling and swearing the jury.11 73. Requirement that Record Show Plea.-Not only must the opportunity of pleading be afforded to the defendant, but the fact that he did plead, or at least was furnished an opportunity to plead, must appear affirmatively in the record. 12 This requirement as to the record is not a matter of form merely, but of substance; 18 and if it is not met, the ordinary presumption of regularity as to procedure will not be raised on appeal,14 but on the contrary it will be conclusively presumed that the opportunity to plead was not given.15 If, however, a plea is actually made at the proper time, a failure to make a record thereof is not fatal, as the trial court may order the entry of the plea nunc pro tunc.16 74. Who May Make Plea.-When the defendant in a felony case is arraigned he is brought to the bar to plead in person, and it is quite generally held that a plea by his attorney will be considered a mere nullity,17 except a plea of not guilty-which plea cannot injure his client.18 There There is no objection to pleading by attorney to a charge of misdemeanor.19 7. State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 A. S. R. 213; Hack v. State, 141 Wis. 346, 124 N. W. 492, 45 L.R.A. (N.S.) 664 and note. 8. Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433; State v. Forner, 75 Kan. 423, 89 Pac. 674, 12 Ann. Cas. 703; United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L.R.A. (N.S.) 1181. Note: 13 L.R.A. (N.S.) 811. 9. United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L.R.A. (N.S.) 1181. 10. Parkinson v. People, 135 Ill. 401, 25 N. E. 764, 10 L.R.A. 91. 11. State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 A. S. R. 213. Note: 27 L.R.A.(N.S.) 1181. 12. Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441. Notes: 13 L.R.A. (N.S.) 812; 45 L.R.A. (N.S.) 665. 13. State v. Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A. (N.S.) 811. 14. Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441. Note: 13 L.R.A.(N.S.) 812. 15. State v..Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A. (N.S.) 811 (in which case the court said there was some authority to the effect that the entry of a plea is not essential under all circumstances, even when the charge was for a felony); Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441. 16. Parkinson v. People, 135 III. 401, 25 N. E. 764, 10 L.R.A. 91. 17. State v. Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A. (N.S.) 811; Sperry v. Com., 9 Leigh (Va.) 623, 33 Am. Dec. 261. Notes: 13 L.R.A. (N.S.) 814; 45 L.R.A.(N.S.) 664. 18. Note: 13 L.R.A. (N.S.) 814. 19. Warren v. State, 19 Ark. 214, 68 Am. Dec. 214; People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32. Note: 13 L.R.A. (N.S.) 814. 2 75. Right to Opportunity to Plead; Waiver.-The defendant has an absolute right to an opportunity to plead. Without it, due process of law is impossible. It is held quite generally that the absence of an opportunity to plead is fatal to a conviction, although the defendant manifests no desire to enter a plea and there is nothing to show that he was in any way injured by not having an opportunity to do so;1 that if such opportunity is not given, the judgment will be reversed and the case remanded for a new trial; and the facts that the accused proceeds with the trial without objection and that the case was tried as though a plea had been entered will not cure the defect. In other words, a plea is absolutely necessary to the validity of a trial, and it cannot be waived under any circumstances. There are, however, authorities for the rule that a defendant may waive his right to plead, and some cases, without expressly holding that the defendant waived his privilege of pleading, have held that a judgment of conviction should not be reversed where the defendant, on the trial, had all of his constitutional rights and privileges, and was in no way prejudiced by the failure of an opportunity to plead. The defendant's attorney cannot, under any circumstances, waive the defendant's right to be given an opportunity to plead." 76. Various Kinds of Pleas and Their Nature and Effect.-The common-law pleas to an indictment were: (1) plea of guilty; (2) plea to the jurisdiction; (3) demurrer; (4) plea in abatement; (5) special plea in bar; (6) the general issue or the plea of not guilty. The same pleas may not exist as such at the present time in all jurisdictions; but it is obvious that indictments must be answered in one of the ways indicated, no matter what nomenclature is used. The plea of guilty is discussed in another place. Pleas to jurisdiction, in abatement, and demurrers are like the same pleas in a civil suit. Special pleas in bar are: (1) former conviction; (2) former acquittal; (3) pardon. A pardon may be pleaded in bar, as it destroys the purpose of the indictment by remitting the punishment which the prosecution is intended to inflict. A plea of not guilty puts in issue 20. State v. Walton, 50 Ore. 142, 91 Rep. 433. Pac. 490, 13 L.R.A. (N.S.) 811. 1. Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433; State v. Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A. (N.S.) 811; Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441. Note: 45 L.R.A.(N.S.) 664. As to whether jeopardy attaches before a plea is entered, see infra, par. 120. 2. Jackson v. State, 91 Ala. 55, 8 So. 773, 24 A. S. R. 860 and note; Hoskins v. People, 84 Ill. 87, 25 Am. 3. State v. Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A.(N.S.) 811. See infra, par. 136, 137. 4. State v. Rook, 61 Kan. 382, 59 Pac. 653, 49 L.R.A. 186; State v. Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A. (N.S.) 811. 5. Note: 13 L.R.A. (N.S.) 813, 6. State v. Walton, 50 Ore. 142. 91 Pac. 490, 13 L.R.A. (N.S.) 811. 7. See infra, par. 82 et seq. 8. See infra, par. 87 et seq. 9. See infra, par. 99. every allegation of the indictment,10 among which may be mentioned the truthfulness of a statement in the indictment that certain facts were unknown to the grand jurors,11 and the sufficiency of the matters alleged in the indictment to constitute a crime; but the failure of an indictment to set forth the offense with sufficient clearness and certainty should be taken advantage of by demurrer, and not urged under a plea of not guilty.12 A plea which does not answer the whole indictment or all of the counts to which it is pleaded is defective.13 A plea is subject to either a demurrer or a motion to strike from the records; and if neither is interposed, issue must be taken on the plea and it goes before the jury on the question of fact.14 A court cannot, of its own motion, overrule a plea on facts within the personal knowledge of the judge without evidence properly produced before the court. 15 77. Withdrawal of Plea.-In some jurisdictions, the right of a defendant to withdraw his plea is absolute if a motion therefor is made within the proper time,16 but the matter is usually considered as resting in the discretion of the court; 17 and as in other cases of discretionary power, no general rule can be laid down as to when a defendant should be permitted to withdraw his plea. The decision. in each case must depend to a great extent on the particular attendant circumstances.18 Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge,19 or through a misunderstanding as to its effect,20 or under a total misapprehension of the defendant's rights, through fear, fraud or official misrepresentation,1 or on a false assumption that on a plea of guilty the court would be lenient in passing sentence; or even where it was entered unadvisedly, if any reasonable 10. Note: 34 L.R.A. (N.S.) 436. 11. People v. Hunt, 251 Ill. 446, 96 N. E. 220, 36 L.R.A.(N.S.) 933. Ann. Cas. 1914A 448; People v. Turner, 260 Ill. 84, 102 N. E. 1036, Ann. Cas. 1914D 144; Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L.R.A. (N.S.) 1056; State v. Watson, 20 R. 13. Fox v. State, 89 Md. 381, 43 Atl. I. 354, 39 Atl. 193, 78 A. S. R. 871: 775, 73 A. S. R. 193. State v. Stevenson, 64 W. Va. 392, 62 12. Blum v. State, 94 Md. 375, 51 Atl. 26, 56 L.R.A. 322. 14. Coburn v. State, 151 Ala. 100, S. E. 688, 19 L.R.A. 713. 44 So. 58, 15 Ann. Cas. 249. 15. Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249 and note. 16. Krolage v. People, 224 Ill. 456, 79 N. E. 570, 8 Ann. Cas. 235. Note: 8 Ann. Cas. 240. As to the withdrawal of the plea of guilty in murder cases see infra, par. 82. 17. Verberg v. State, 137 Ala. 73, 34 So. 848, 97 A. S. R. 17; Wolfe v. State, 102 Ark. 295, 144 S. W. 208, Notes: 8 Ann. Cas. 237; 16 Ann. Cas. 973. 18. Krolage v. People, 224 Ill. 456, 79 N. E. 570, 8 Ann. Cas. 235 and note. 19. Note: 8 Ann. Cas. 238. 20. Krolage v. People, 224 III. 456, 79 N. E. 570, 8 Ann. Cas. 235. 1. Swang v. State, 2 Cold. (Tenn.) 212, 88 Am. Dec. 593. Note: 8 Ann. Cas. 238. 2. Krolage v. People, 224 Ill. 456, 79 N. E. 570, 8 Ann. Cas. 235. ground is offered for going to the jury. If, on the other hand, a defendant, with full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, enters such a plea understandingly and without fear or persuasion, the court may, without abusing its discretion, refuse to permit him to withdraw it. Leave to withdraw a plea of guilty may be given at any time before judgment; though after verdict there should exist such reasons as would be sufficient to justify the granting of a new trial. It is hardly necessary to state that when a plea of guilty has been withdrawn and a plea of not guilty entered, the plea of guilty is not admissible in evidence against the accused. While the exercise of discretionary power is not reviewable on appeal, the action of the trial court in a matter involving this power is always subject to review in order that the appellate court may determine whether there has been an abuse of discretion, or, more accurately, whether the trial court has exercised a judicial discretion as distinguished from arbitrary action.8 To this extent the action of a trial court in refusing leave to withdraw a plea of guilty is reviewable on appeal or writ of error, and if it appears that such action was arbitrary and not the exercise of a sound judicial discretion, the appellate court will not hesitate to reverse.9 78. Pleading Over.-In criminal cases the defendant sometimes interposes a plea which does not involve the merits, such as a plea of former jeopardy or in abatement, and where a decision adverse to him is rendered on such a plea the question arises as to the right to or necessity of a further plea. In case a plea of former jeopardy is overruled the defendant, at common law, may plead over, that is, enter a further plea of not guilty, if a felony is charged, but in the case of a misdemeanor judgment is rendered as on a plea of guilty. This rule prevails in England, and has been applied also in a number of jurisdictions in the United States, 10 though as a general rule in the United States the distinction between felony and misdemeanor in this respect is abolished, and in either case the defendant may plead over 3. Pope v. State, 56 Fla. 81, 47 So. 487, 16 Ann. Cas. 972; Krolage v. People, 224 Ill. 456, 79 N. E. 570, 8 Ann. Cas. 235. 4. Waller v. U. S., 179 Fed. 810, 103 C. C. A. 302, 31 L.R.A.(N.S.) 113; Pope v. State, 56 Fla. 81, 47 So. 487, 16 Ann. Cas. 972; Krolage v. People, 224 Ill. 456, 79 N. E. 570, 8 Ann. Cas. 235 and note. Note: 16 Ann. Cas. 973. 8. See APPEAL AND ERROR, vol. 2, p. 211 et seq. 9. Verberg v. State, 137 Ala. 73, 34 So. 848, 97 A. S. R. 17; Pope v. State, 56 Fla. 81, 47 So. 487, 16 Ann. Cas. 972 and note; Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L.R.A. (N.S.) 1056; State v. Stevenson, 64 W. Va. 392, 62 S. E. 688, 19 L.R.A. (N.S.) 713. Notes: 8 Ann. Cas. 237; 16 Ann. Cas. 973. 10. Notes: 9 Ann. Cas. 130. 7. Note: 8 Ann. Cas. 240. |