Crain v. United States
162 U.S. 625 (1896)

Annotate this Case

U.S. Supreme Court

Crain v. United States, 162 U.S. 625 (1896)

Crain v. United States

No. 557

Submitted March 3, 1896

Decided April 20, 1896

162 U.S. 625

ERROR TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF ARKANSAS

Syllabus

One count in an indictment may refer to matter in a previous count so as to avoid unnecessary repetition, and if the previous count be defective or is rejected, that circumstance will not vitiate the remaining counts if the reference be sufficiently full to incorporate the matter going before with that in the count in which the reference is made.

A count in an indictment which charges that the defendant did certain specified things, and each of them, the doing of which and of each of which was prohibited by statute, and also that he caused the doing of such things and of each of them, is not defective so as to require that judgment upon it be arrested, and there may be a verdict of guilty upon proof that the accused had done anyone of the things constituting a substantive crime under the statute.

A record which sets forth an indictment against a person for the commission of an infamous crime, the appearance of the prosecuting attorney, the appearance of the accused in person and by his attorney, an order by the court that a jury come "to try the issue joined," the selection of a named jury for the trial of the cause, who were "sworn to try the issue joined and a true verdict render," the trial, the retirement of the jury, their verdict finding the prisoner guilty, and the judgment entered thereon in accordance therewith, does not show that the accused was ever formally arraigned, or that he pleaded to the indictment, and the conviction must be set aside, as it is better that a prisoner should escape altogether than that a judgment of conviction of an infamous crime should be sustained where the record does not clearly show that there was a valid trial.

This writ of error brings up for review a judgment in the District Court of the United States for the Western District of Arkansas by which the plaintiff in error was sentenced to imprisonment in the house of correction at Detroit, Michigan, at hard labor for the term of three years.

The defendant was indicated under section 5421 of the Revised Statutes, which provides:

"Every person who falsely makes, alters, forges or counterfeits, or causes or procures to be falsely made, altered, forged or counterfeited or willingly

Page 162 U. S. 626

aids or assists in the false making, altering, forging or counterfeiting any deed, power of attorney, order, certificate, receipt, or other writing for the purpose of obtaining or receiving, or of enabling any other person either directly or indirectly to obtain or receive from the United States or any of their officers or agents any sum of money, or who utters or publishes as true or causes to be uttered or published as true any such false, forged, altered, or counterfeited deed, power of attorney, order, certificate, receipt, or other writing with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited, or who transmits to, or presents at, or causes or procures to be transmitted to or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt, or other writing in support of or in relation to any account or claim with intent to defraud the United States knowing the same to be false, altered, forged, or counterfeited, shall be imprisoned at hard labor for a period of not less than one year nor more than ten years, or shall be imprisoned not more than five years and fined not more than one thousand dollars."

The indictment contained three counts. The first count sets out in full a declaration purporting to have been made by one Spahiga, a resident of the Creek Nation, in the Indian Territory, for an invalid pension, to which was appended a certificate or statement purporting to have been made by two persons named Marrell and Fixico to the effect that they were present and saw Spahiga sign his name or make his mark to said declaration, and that they had every reason to believe that he was the identical person that he represented himself to be. The declaration and accompanying certificate or statement purported to have been sworn to on the 4th day of August, 1892, before "A. W. Crain, U.S. Comm'r, Pension Notary."

The second count charged:

"That heretofore, to-wit, on the 4th day of August, A.D. 1892, one Spahiga is alleged to have executed a certain declaration and affidavit. Said declaration and affidavit are in words and figures as set out in the first count of this indictment, and said declaration and affidavit

Page 162 U. S. 627

purporting to be executed before one A. W. Crain, United States commissioner in the Creek Nation, in the Indian Territory, the said Spahiga claiming in said declaration a pension from the United States as soldier of war of Rebellion, who in said declaration was alleged to have enlisted under the name of Spahiga at _____, on the 12th day of August, 1863, Company D, first regiment, Indian Home Guards, Indian Territory, in the war of the Rebellion. Said declaration and affidavit, after being so made, executed, and falsely counterfeited and forged by said Alex. W. Crain, was by said Alex. W. Crain forwarded, with intent to defraud the United States, and to obtain certain moneys from the United States, to the office of the Commissioner of Pensions in the Department of the Interior at the City of Washington, in the District of Columbia, where the same was duly filed on the 12th day of August, 1892, as a claim against the government of the United States for a pension by the said Spahiga, as soldier aforesaid, as aforesaid, and being so filed for approval by the said A. W. Crain in the office aforesaid by the Commissioner of Pensions, and the said affidavit and declaration being material on the question pending before said Commissioner of Pensions as to whether the said Spahiga was by the laws of the United States entitled to a pension. And the jurors aforesaid, upon their oaths aforesaid, do further present that on the 4th day of August, 1892 at the Creek Nation, Indian Territory, and within the Western District of Arkansas at which date said declaration, affidavit, and claims were prepared and made for filing in the office of the Commissioner of Pensions, as aforesaid, the same being an office of the United States, for the purpose aforesaid, one Alex. W. Crain did make, execute, and forge, and cause to be made, executed, and forged a certain pretended and false affidavit, or the same may be called a certificate, the same being one and the same paper, and being in form and substance as hereinafter set out, which said forged, false, and counterfeited affidavit or certificate was fraudulent, and was a part of the said declaration and affidavit above mentioned, and was forwarded, together with the said declaration, to the office of the Commissioner of Pensions aforesaid,

Page 162 U. S. 628

for the purpose of defrauding the United States and of aiding and abetting the said Spahiga to obtain the approval of the said Commissioner of Pensions to his said claim for a pension as aforesaid, for the purpose of aiding the said Spahiga fraudulently to obtain money from the United States, which said pretended and false affidavit and certificate is in substance set out in the first count of this indictment. The said pretended affidavit and certificate and declaration were forged, false, and fraudulent, and did contain fraudulent and fictitious statements, as the said A. W. Crain well knew, in this, that Pahose Marrell, Spahiga, and Nokos Fixico did not sign said pretended affidavit and certificate, declaration and affidavit, as set forth in said false certificate and affidavit, and said Pahose Marrell, Spahiga, and said Nokos Fixico were not sworn as to the truth of the matters and things set forth in said pretended declaration, affidavit, and certificate, but in truth and fact the said A. W. Crain did knowingly and willfully, feloniously and falsely make, counterfeit, forge, and cause to be made, counterfeited, and forged, the names of Pahose Marrell, Spahiga, and Nokos Fixico to and upon the said false and forged affidavit and certificate, with intent to defraud the United States, and to aid the said Spahiga in obtaining money fraudulently from the United States and that the said A. W. Crain did not swear the said Pahose Marrell, said Spahiga, and the said Nokos Fixico as to the truth of the matters and things set forth in said declaration, affidavit, and certificate, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America."

The third count charged

"That A. W. Crain, on the 4th day of August, A.D. 1892 at the Creek Nation, in the Indian country, within the Western District of Arkansas aforesaid, unlawfully and feloniously did transmit to the office of the Commissioner of Pensions of the United States, the same being an office under the government of the United States, and for the purpose of defrauding the United States, the false and forged instrument of writing set out in the first count of this indictment, contrary,"

etc.

Page 162 U. S. 629

The record of the trial in the trial court, omitting captions, was as follows:

"Friday, November 7 1890"

"On this day come the United State of America, by Jas. F. Read, Esq., Attorney for the Western District of Arkansas, and come the said defendant in his own proper person and by his attorney, Wm. M. Mellette, Esq., and on motion of plaintiff, by its attorney, it is ordered by the court that a jury come to try the issue joined, whereupon the following were selected for the trial of this cause, to-wit, [naming them], twelve good and lawful men of the district aforesaid, duly selected, empanelled, and sworn to try the issue joined and a true verdict render according to the law and the evidence, and, after hearing the evidence and argument of counsel and receiving the charge of the court, retired to consider of their verdict, and after a short time returned into court the following verdict, to-wit:"

" We, the jury, find the defendant, A. W. Crain, guilty as charged in the first, second, and third counts of the within indictment."

" (Signed) J. L. McConnell, Foreman"

"Whereupon, by order of the court, the jury was discharged from the further consideration of the case and the defendant committed to the custody of the marshal to await final sentence."

"Monday, Nov. 12, 1894"

"On this day comes the said defendant, by his attorney, and files this motion for arrest of judgment herein."

That was as follows:

"Now comes the defendant and moves the court to arrest the judgments on the verdict of the jury rendered on the three counts herein for the following reasons, and to set aside said verdicts:"

"1st. Because the first count of the indictment upon which said verdict was rendered is defective in substance in this, that it does not state in what particular the affidavit, declaration, or certificate set forth therein is forged, and traverses the same. "

Page 162 U. S. 630

"2d. Because said indictment does not state which declaration, certificate, or affidavit therein set forth is false, there being two such indictments."

"3d. Because the first count of said indictment does not allege that defendant knew that the document set forth therein was false."

"4th. Because said count charges no act which is a crime or misdemeanor under the laws of the United States."

"5th. Because the second count in said indictment is double, containing and including three distinct offenses therein, to-wit: that the defendant forwarded to the Pension Department of the United States two separate and distinct affidavits or declarations or certificates for the purposes of defrauding the United States, and that the defendant did falsely make, counterfeit, and forge, and cause to be made, counterfeited, and forged, a certain pretended and false affidavit or certificate for the purpose of defrauding the United States and obtaining money from the United States."

"6th. Because the second count of said indictment does not set out with sufficient certainty the affidavit, certificate, or declaration alleged therein to have been falsely made, forged, and counterfeited and unlawfully forwarded to the office of the Commissioner of Pensions."

"7th. Because the said count is not complete within itself, but in an indefinite and uncertain manner refers to a document contained and set forth in the first count of said indictment."

"8th. Because the second count of said indictment is indefinite and misleading in this, that it alleges that the names of Pahose Mahlah, Spahiga, and Nocus Fixico were forged to one and the same document, as set out in the first count of the indictment, which is not a fact."

"9th. Because said second count does not state in what particular the affidavit or declaration or certificate set out therein is false and was forged."

"10th. Because the said second count does not in a legal manner charge any offense against the laws of the United States. "

Page 162 U. S. 631

"11th. Because the third count of said indictment is defective in substance in this, that it does not state in what particular the affidavit or instrument of writing therein referred to as being set out in the first count of said indictment is false and forged."

"12th. Because the reference made in said third count to an instrument of writing set forth in the first count is indefinite and uncertain."

"13th. Because the said third count does not state which instrument of writing set forth in the first count was unlawfully forwarded to the Pension Office."

"14th. Because the third count of said indictment does not state that the defendant knew that the instrument of writing alleged to have been unlawfully forwarded to the Pension Office was false and forged."

"15th. Because said third count charges no act which is a crime under the laws of the United States."

"Wherefore defendant prays that he be discharged."

On the 28th of December following, the court sustained the motion for arrest of judgment as to the first and third counts, and overruled it as to the second count. The record then proceeds:

"On motion of Jas. F. Read, Esq., Attorney for the Western District of Arkansas, the said defendant, A. W. Crain, was brought to the bar of the court in custody of the marshal of said district and, it being demanded of him what he has or can say why the sentence of the law upon the verdict of guilty (second count) heretofore returned against him by the jury in this cause on the 9th day of Nov., A.D. 1894, shall not now be pronounced against him, he says he has nothing further or other to say than he has heretofore said."

The court then sentenced the prisoner to imprisonment at hard labor for three years. On the 22d day of January, 1895, the following entries appear in the record.

"Now comes defendant, Alex. W. Crain, by his attorney, Wm. M. Mellette, Esq., and tenders this his bill of exceptions in the above entitled cause and asks that the same be signed and made a part of the record in this case, which is accordingly done. "

Page 162 U. S. 632

"Also at the same time presents his assignment of errors, which is ordered filed."

"Also at the same time presents his petition asking for writ of error to the Supreme Court of the United States, which petition is ordered filed and writ of error ordered issued."

The exception was to the overruling of the motion in arrest of judgment as to the second count of the indictment.

The assignments of error were: (1) that ist was error to overrule the motion in arrest of judgment upon the conviction upon the second count of the indictment; (2) that it was error to render judgment against the defendant upon the verdict of guilty on that count, and to sentence him to imprisonment thereon.

In the brief for the plaintiff in error in this Court, it was said:

"The plaintiff in error was not given an opportunity to plead to the indictment before being put upon his trial, never having been arraigned, as is fully shown by an inspection of the printed record. An arraignment is essential to a valid trial."

MR. JUSTICE HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The transcript before the court must be taken to be as certified -- namely, a true and complete copy of the record and proceedings in this case. It appears from the first order of record in the trial court that the defendant came "in his own person and by his attorney;" that on motion of the United States, by its attorney, it was "ordered by the court that a jury come to try the issue joined;" that a jury as selected, impaneled, and sworn "to try the issue joined, and a true verdict render, according to the law and the evidence;" and that the jury found the defendant "guilty as

Page 162 U. S. 633

charged in the first, second, and third counts of the within indictment."

The defendant moved, upon written grounds filed, to arrest the judgment and to set aside the verdict. The grounds of that motion all related to the sufficiency of the several counts of the indictment. The motion was overruled as to the second count and sustained as to the first and third.

The defendant, on a subsequent day, tendered his bill of exceptions, embodying the motion in arrest of judgment, with the grounds therefor, and at the same time presented an assignment of errors.

The errors assigned by him in the court below and made part of the record were (1) the overruling of the motion in arrest of judgment upon the conviction on the second count of the indictment, (2) the rendering of judgment upon the verdict of guilty on that count, and the sentence of imprisonment.

When the accused was brought into court after verdict, it was demanded of him what he had or could say why the sentence of the law upon the verdict of guilty on the second count should not be pronounced against him. He replied that he had nothing further to say than he had theretofore said.

1. One of the objections made to the second count was that it was incomplete, and referred in an uncertain, indefinite manner to documents set forth in the first count. The reference to the declaration and affidavit set forth in the first count indicated the documents that were intended to be incorporated by reference into the second count, and this reference was not affected by the fact that the first count was defective, or by the fact that judgment upon that count was arrested. One count may refer to matter in a previous count so as to avoid unnecessary repetition, and if the previous count be defective or is rejected, that circumstance will not vitiate the remaining counts if the reference be sufficiently full to incorporate the matter going before with that in the count in which the reference is made. Blitz v. United States,153 U. S. 308, 153 U. S. 317.

Page 162 U. S. 634

2. It is said that the second count charges three separate, distinct felonies, and is therefore materially defective within the rule that two offenses cannot be charged in the same count. 1 Archbold's Cr.Pr. & Pl. 95; 1 Bishop's Cr.Pro. § 432. Undoubtedly the section of the Revised Statutes under which the indictment was framed embraces several distinct acts the doing of either of which is punishable. It is prohibited either to falsely make, alter, forge, or counterfeit, or to cause to be falsely made altered, forged, or counterfeited, any deed, power of attorney, order, certificate, receipt, or other writing for the purpose of obtaining recovering, or enabling any other person, either directly or indirectly, to obtain or receive from the United States any sum of money. It is also prohibited to any person to transmit to or present at, or cause or procure to be transmitted to or presented at, any office or to any officer of the government, any deed, power of attorney, order, certificate, receipt, or other writing in support of or in relation to any account or claim with the intent to defraud the United States knowing the same to be false, altered, forged, or counterfeited. The second count charged in substance not only that the defendant did things, and each of them, the doing of which or either of which the statute prohibited, but also that he caused the doing of such things and of each of them. Was the count thus drawn so defective as to require that judgment upon it be arrested?

In Rex v. Hunt, 2 Camp. 583, the question was whether a defendant might be found guilty upon account in an information charging him with having composed, printed, and published a libel if it were proved that he simply published, but did not compose, it. Lord Ellenborough held that it was enough to prove publication. "If an indictment," he said,

"charges that the defendant did and caused to be done a particular act, it is enough to prove either. The distinction runs through the whole criminal law, and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified."

Chitty says:

"If an indictment charge that the defendant did and caused to be done a particular act, it is enough to prove

Page 162 U. S. 635

either. Thus, under an indictment for forgery stating that the defendant forged and caused to be forged, it suffices to prove either."

1 Chitty's Cr.Law, 251; Starkie's Cr.Pl. 339.

In Rasnick v. Commonwealth, 2 Va.Cas. 356, it was held that an indictment charging the defendant with the making of certain base coin, of causing and procuring such coin to be made, and of assisting in making it -- three distinct offenses set out in one count -- was sufficient to authorize judgment upon a general verdict of guilty.

So in Commonwealth v. Tuck, 20 Pick. 356, it was adjudged that a count in an indictment alleging that the defendant broke and entered a shop with intent to commit larceny and did there commit larceny was not double. In that case, doubt was expressed whether the objection that an indictment containing one count, and embracing more than one offense, could be taken advantage of in arrest or on error, the court observing that the better opinion was that it cannot, and that the appropriate remedy of the accused, in order to avoid the inconvenience and danger of having to meet several charges at the same time, is a motion to quash the indictment or to confine the prosecutor to some one of the charges. In another case, arising under a statute of Massachusetts making it an offense to set up or promote certain exhibitions without license therefor, an indictment containing a single count and charging that the defendant set up and promoted a certain exhibition was sustained against the objection of duplicity. Commonwealth v. Twichell, 4 Cush. 74.

Under a statute of New Jersey making it an offense to burn or cause to be burned any barn, not parcel of a dwelling house, an indictment containing one count charging that the defendant "burned and caused to be burned," etc., was sustained by the Supreme Court of New Jersey in State v. Price, 11 N.J.L. 241, 255. Among other authorities, the court cited Starkie, who says:

"It is the usual practice to allege offenses cumulatively, both at common law and under the description contained in penal statutes, as that the defendant published and caused to be published a certain libel; that he forged and caused to be forged,"

etc. Starkie's Cr.Pl. 271.

Page 162 U. S. 636

So, under a statute of Pennsylvania making it an offense for supervisors of highways to neglect to open or repair a public highway, it was held proper to charge in one count the neglect to open and repair such highway, the court observing that the offenses of not opening and not repairing were of the same character and description if, indeed, they were distinct. Edge v. Commonwealth, 7 Penn.St. 275, 278.

We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled. The evil that Congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorneys, orders, certificates, receipts, or other writings. The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specified things, each having reference to that object, should be punished by imprisonment at hard labor for a period of not less than five years nor more than ten years, or by imprisonment for not more than five years and a fine of not more than one thousand dollars. We perceive no sound reason why the doing of the prohibited thing in each and all of the prohibited modes may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done anyone of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused who pleads not guilty to the charge contained in a single count, for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it.

3. But an objection is made to the proceedings in the court below which is of a serious character.

The record does not show that the accused was ever formally arraigned, or that he pleaded to the indictment, unless all that is to be inferred simply from the order made at the beginning of the trial, and as soon as the accused appeared, reciting that the jury were selected, impaneled, and sworn "to try the issue joined," and from the statement in the bill of exceptions that the jury were "sworn and charged to try the

Page 162 U. S. 637

issues joined." What that issue was is not disclosed by the record.

The government does not in terms claim that it was unnecessary for the defendant to plead to the indictment. But it assumes (although the record does not state such to be the fact) that the defendant pleaded not guilty, and contends that the omission to record that plea is only a clerical error which did not prejudice his substantial rights.

By section 1025 of the Revised Statutes of the United States, it is declared that

"no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only which shall not tend to the prejudice of the defendant."

Is it a matter of form only whether the accused pleads or does not plead to an indictment for an infamous crime? If it be not a matter of form, then it would seem that, if convicted, the fact that the accused did plead should clearly appear from the record, and not be left to mere inference arising from a general recital that the jury was sworn to try and did try "the issue joined," without stating what was such issue. While, as said in Pointer v. United States,151 U. S. 396, 151 U. S. 419, all parts of the record are to be interpreted together, so that, if possible, effect be given to all, and a deficiency in one part of it supplied by what appears elsewhere, it was there held that

"the record of a criminal case must state what will affirmatively show the offense, the steps without which the sentence cannot be good, and the sentence itself."

In capital or other infamous crimes, an arraignment has always been regarded as a matter of substance. "The arraignment of the prisoner," Lord Coke said, "is to take order that he appear, and for the certainty of the person to hold up his hand, and to plead a sufficient plea to the indictment or other record." Co.Lit. 263a.

According to Sir Matthew Hale, the arraignment consists of three parts, one of which, after the prisoner has been called to the bar, and informed of the charge against him, is the

Page 162 U. S. 638

"demanding of him whether he is guilty or not guilty, and, if he pleads not guilty, the clerk joins issue with him cul. prist, and enters the prisoner's plea. Then he demands how he will be tried. The common answer is, 'By God and the country,' and thereupon the clerk enters po. se, and prays to God to send him a good deliverance."

2 Hale's P.C. 219. So, in Blackstone:

"To arraign is nothing else but to call the person to the bar of the court to answer the matter charged upon him in the indictment. . . . After which [after the indictment is read to the accused] it is to be demanded of him whether he is guilty of the crime whereof he stands indicted, or not guilty."

4 Bl.Com. 322-341. Chitty says:

"The proper mode of stating the arraignment on the record is in this form: 'And being brought to the bar here in his own proper person, he is committed to the marshal,' etc. And being asked how he will acquit himself of the premises (in case of felony, an of high treason in case of treason) above laid to his charge, saith, etc. If this statement be omitted, it seems the record will be erroneous."

1 Chitty's Cr.Law 419.

The importance attached to the proper arraignment of one accused of felony, including the demand upon him to plead to the indictment, was illustrated in Commonwealth v. Hardy, 2 Mass. 303, 316. That was a case of murder. The accused was arraigned before one of the justices of the Supreme Judicial Court of Massachusetts. He pleaded not guilty, and put himself for trial upon the country. The plea was recorded, and counsel was assigned to him at his own request. On a subsequent day, the prisoner was brought into court, three justices being present, and, the clerk having been directed to arraign him, he informed the court that the prisoner had been arraigned and had pleaded not guilty. The prisoner made no objection to proceeding, and he was convicted. The question arose whether the conviction was valid under a statute then in force, which provided that

"all indictments which may be found for any capital offense shall be heard, tried, and determined exclusively in the courts which are to be holden pursuant to the second section hereof by

Page 162 U. S. 639

three or more of the said justices."

Chief Justice Parsons said:

"We are all of opinion that the power of hearing, trying, and determining an indictment for a capital offense includes a power to arraign a prisoner, and to record his plea. It is therefore one of the powers which the court, when holden by one judge, is restrained from exercising. Consequently the arraignment of a prisoner, and his plea, were not coram judice."

Again:

"No possible inconvenience has resulted to the prisoner from the proceedings in this case. His plea that was recorded was the most favorable plea he could have pleaded, and when the jury was called, he made no objection to proceed in the trial of his issue, but assented by making his challenges. But an objection, founded in a want of jurisdiction however small, and from which no inconvenience has arisen, is not, in capital cases, taken away by an implied assent."

In Grigg v. People, 31 Mich. 471, which was an indictment for larceny, the record did not show that the accused had been arraigned or that any plea was made or entered of record. Nevertheless he was convicted and sentenced to the house of correction. The court, speaking by Chief Justice Graves (Justices Cooley and Campbell concurring), said:

"The Attorney General, whilst admitting that an arraignment and plea were indispensable, as, of course, they were, submits to the court whether, in the absence of any express matter in the record as returned to show the contrary, it ought not to be intended that both proceedings were actually had. An arraignment and plea being imperatively required, the recital of them, if they were taken, was a necessary ingredient of the record."

The judgment was reversed, that the accused might be lawfully arraigned, or otherwise dealt with agreeably to law.

The Supreme Court of Wisconsin, in a case of misdemeanor, said:

"The record in this case fails to show any issue which the jury was called upon to try. It is the business and the duty of the prosecuting officer of the government to move on the trial of criminal cases, and to see that the proper issue be made up. It may be probable that the defendant in this case was perfectly aware of the offense with which he was charged.

Page 162 U. S. 640

It appears that he consented to go to trial, but a trial of what did he consent to? He was arrested and held in custody under the process of the court. It was his right to be informed, and it was the duty of the government to inform him, of the accusation against him. This is done by arraignment and requiring the defendant to plead. It is true, this right of arraignment may, in minor offenses, be waived, but a plea, an issue, is absolutely essential. Nor can we supply an issue corresponding to the verdict when the record is entirely silent on the subject."

Douglass v. Wisconsin, 3 Wis. 715, 716.

In People v. Corbett, 28 Cal. 328, 330, it appeared that the defendant, indicted for grand larceny, asked, when brought into court, a separate trial, which was granted. The jury was impaneled, witnesses were introduced by him, the case was argued by his counsel, and the jury, having been charged by the court, returned a verdict of guilty. The Supreme Court of California said:

"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 behalf to the jury, nor did all of them combined, cure the want of a plea. There was not only no arraignment, but, over and beyond that, there was no issue for the jury to try. Not only did the defendant not plead, but, inasmuch as the statute opportunity for pleading was never extended to him, he was never under any obligation to plead. A verdict in a criminal case where there has been neither arraignment nor plea is a nullity, and no valid judgment can be rendered thereon. And so is a verdict rendered upon a plea put in by the attorney of a party indicted for a felonious assault with intent to rob."

In State v. Higgins, 1 Ala. 655, 657, it was held to be error to swear the jury to pass upon the guilt or innocence of the accused before calling upon him to plead. The court said that until the prisoner was called on for his plea, it could not be known whether there would be an issue of fact for the jury,

Page 162 U. S. 641

or what the issue (if any) might be; that the prisoner, instead of submitting the question of his guilt, might have pleaded in abatement, or have presented to the court legal objections to the indictment, and that, though a formal arraignment of one charged with a criminal offense may not be indispensable to the regularity of a conviction, it was clear that the case must be put in a condition for trial before the jury is sworn.

In Sartorious v. State, 24 Miss. 602, 611-612, which was an indictment for buying certain goods knowing them to be stolen, the court said:

"The record does not show that the prisoner was arraigned, or that he pleaded to the indictment. In trials for minor offenses, a formal arraignment in practice is generally dispensed with. In such cases, where the defendant has plead to the indictment, an arraignment will be presumed. But a party, before he can be put upon his trial, must plead to the indictment. In civil proceedings, it is error to submit a cause to the jury without an issue in fact having been made up by parties. In prosecutions for offenses, it must be equally erroneous to put a party upon his trial unless he has taken issue upon the charge by pleading to the indictment."

In Bowen v. State, 108 Ind. 411, 413, the court said:

"Under the decisions of this court, it can no longer be recognized as a subject of controversy that where the record in a criminal case fails to disclose affirmatively that a plea to the indictment was entered either by or for the defendant, such record on its face shows a mistrial, and that the proceeding was consequently erroneous, to say the least."

In Aylesworth v. People, 65 Ill. 301, which was an indictment for a misdemeanor, the record failed to show that the accused was ever arraigned or pleaded. The Supreme Court of Illinois said: "The record should also show that the plea of not guilty was entered. Without it, there is nothing for the jury to try.

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