See post,

W. Va. 516, 18 S. E. 734.
“Withdrawal,” V, I, 6, c, (7), (j). See
the title INTOXICATING LIQUORS.
Withdrawal of Plea of Guilty.—In a
criminal case, the court may permit
the plea of guilty to be withdrawn,
and another plea to be entered in its
place, in the exercise of a sound dis-
cretion, if justice and a fair trial on
the merits require it; but it must be in
time, and the reason for it must be
made to appear clearly and distinctly.
State v. Shanley, 38 W. Va. 516, 18 S.
E 734.

as I apprehend, that in Virginia the fine, in cases of misdemeanor for which no specific fine is prescribed by statute, is assessed by the jury, and not by the court, as it is in England, and in the states which follow the common law in this respect. The same substantial purpose, however, is effected here by an arrangement with the attorney for the commonwealth, in pursuance of which the defendant, with the assent of the court, confesses a judgment for such fine as the attorney agrees to accept. The amount of the fine is thus ascertained beforehand; while on a submission, under the common-law practice, it is left to the court to fix the amount of the fine in its discretion." | subjects himself to the full legal pen

Honaker v. Howe, 19 Gratt. 50.

(6) Plea of Guilty.

Effect as Regards Penalty.-Where a prisoner pleads guilty to the charge whereof he stands indicted, he thereby

alty for that offense, as if he had been tried and convicted. Granger v. Com.,

See ante, "Plea of Nolo Contendere," 78 Va. 212; State v. Beatty, 51 W. Va. V, I, 6, c, (5).

If in response to the question: "How say you (naming the prisoner); are you guilty, or not guilty?" he answered guilty, that was a confession of the offense. State v. Beatty, 51 W. Va. 232, 41 S. E. 434; Granger v. Com., 78 Va.

212.

232, 41 S. E. 434. See the title SENTENCE AND PUNISHMENT.

Evidence in Mitigation of Sentence. After pleading guilty to the charge whereof he stands indicted, the prisoner may introduce evidence in mitigation of the sentence. Granger v. Com., 78 Va. 212. See the titles EVIDENCE; SENTENCE AND PUNISHMENT.

(7) Plea of Not Guilty.

See ante, "Courses Open to Accused When Called upon to Plead,” V, I, 6, a, (5).

When Received.-"A plea of guilty to any indictment, whatever may be the grade of the crime, will be received and acted upon, if it is made clearly to appear that the nature and effect of it are understood by the accused. In such a case the preliminary investigation of a grand jury, with the admis- (a) Entry by Defendant in Person. sion of the accusation in the indict- In a prosecution for felony, a plea of ment, is supposed to be a sufficient safeguard to the public interests." State v. Cottrill, 31 W. Va. 162, 6. S. E. 428, from opinion of Johnson, P. See § 3895, Va. Code, 1904; W. Va. Code, ch. 143, § 1; ch. 152, § 16.

Entry before Withdrawing Plea of Not Guilty. On an indictment for a violation of the state revenue law in selling spirituous liquors without a license, the plea of guilty may be entered without formally and expressly withdrawing a plea of not guilty theretofore entered. State v. Shanley, 38

not guilty must be pleaded by the defendant in person. State v. Tucker, 52 W. Va. 420, 44 S. E. 427; State v. Beatty, 51 W. Va. 232, 41 S. E. 434; State v. Sheppard, 49 W. Va. 582, 39 S E. 676; State v. Allen, 45 W. Va. 65, 30 S. E. 211; State v. Campbell, 42 W. Va. 246, 24 S. E. 875; Parsons v. State, 39 W. Va. 464, 19 S. E. 876; State v. Sutfin, 22 W. Va. 771; State v. Greer, 22 W. Va. 800; State v. Conkle, 16 W. Va. 736; State v. Strauder, 8 W. Va. 686; Younger v. State, 2 W. Va. 579; Gilligan v. Com., 99 Va. 816, 37 S. E.

constitutional provision, that no person shall be twice put in jeopardy for the same offense." State v. Conkle, 16 W. Va. 736. See post, "Record Showing Appearance by Attorney," V, J, 2, b, (3), (b), cc, (bb). See the title AUTREFOIS, ACQUIT AND CONVICT, vol. 2, p. 181.

(c) Entry by the Court.

See ante, "Courses Open to Accused When Called upon to Plead," V, I, 6, a, (5).

on alternate days, he should so remain until he died. United States v. Gibbert, 2 Sumner (U. S.) 67. All this useless formality and brutality has been done away with." State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

(d) Pleading Not Guilty and Autrefois Acquit.

A plea of not guilty and a special plea of autrefois, acquit or convict may be pleaded at the same time. State v. Hudkins, 35 W. Va. 247, 13 S. E. 367; Com. v. Myers, 1 Va. Cas. 187.

As to manner of trying each of the issues, see the title AUTREFOIS, ACQUIT AND CONVICT, vol. 2, p. 192.

(e) Puts Accused upon Trial by Jury. See post, "Omission of Similiter," V, I, 6, c, (7), (g), cc.

"If the prisoner stand mute and refuse to plead or answer and do not confess his guilt, the court shall have the plea of not guilty entered and the trial shall proceed as if the accused had put in that plea." Judgment upon the verdict in any such trial is entered up as in cases of misdemeanor. State v. Beatty, 51 W. Va. 232, 41 S. E. 434; "It appears that by a recent statute State v. Conkle, 16 W. Va. 751. See in England (Stat. 8, Geo. 4, ch. 28) post, "Presence at Trial for Misde- it is provided that, if a person being meanor," V, J, 2, b, (3), (c). See the arraigned upon an indictment for titles JUDGMENTS AND DE-treason, felony or piracy, shall plead CREES; SENTENCE AND PUN- thereto a plea of not guilty, he shall ISHMENT; VERDICT. by such plea, without further form, be deemed to have put himself upon the country for trial. And this is precisely what our laws, in my judgment, do in effect prescribe. The provision was indispensable in England, since the refusal of the prisoner to state, after he had pleaded not guilty, how he would be tried, was deemed in law as standing mute. In our law he can not be deemed to stand mute, when he has pleaded not guilty. The constitution decides how he shall be tried, inde

"The court may, upon the refusal of the accused to plead, enter for him the plea of not guilty; but this is done in his behalf. It is an act performed for the accused." Whitehead v. Com.,

19 Gratt. 640.

The plea of not guilty puts the party for all purposes upon his trial by jury.” State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

Standing Mute.-"Anciently, if the prisoner stood mute and refused to answer and say whether he was guilty or not guilty in capital felonies, and it was found upon a formal inquiry by jury that he stood obstinately mute and was not dumb ex visitatione Dei, he re-pendent of any election on his part. Iceived the terrible sentence of penance, which was in substance, that he was put into a low dark chamber, laid on his back, naked, and a weight of iron, as great as he could bear placed on his body, and was to have no sustenance except on one day three morsels of the worst bread, and on the second day three draughts of standing water, that should be nearest to the prison door, and with only these given,

"It is said that the English practice is that in cases of treason and felony no issue is joined with the prisoner on behalf of the crown. Whar. Prec. Ind. & Pl. 1138, note, citing Stark, C. P. 742." State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

(f) Entry on Indictment.

If on his arraignment an accused party answered not guilty, the clerk made a minute of it on the indictment and put it in form if it afterwards became necessary to make up the record. State v. Beatty, 51 W. Va. 232, 41 S. E. 434. See post, "Entry on the Record," V, I, 6, (7), (g).

(g) Entry on the Record.

Strauder, 8 W. Va. 686; Younger v. State, 2 W. Va. 579; Gilligan v. Com., 99 Va. 816, 37 S. E. 962; Benton v. Com., 91 Va. 782, 21 S. E. 495; Coleman v. Com., 90 Va. 635, 19 S. E. 161; Shelton v. Com., 89 Va. 450, 16 S. E. 355; Bond v. Com., 83 Va. 581, 3 S. E. 149; Cluverius v. Com., 81 Va. 848; Lawrence v. Com., 30 Gratt. 845; Boswell v. Com., 20 Gratt. 860; Jackson v.

See ante, "Entry on Indictment," V, Com., 19 Gratt. 656; Pifer v. Com., 14 I, 6, c, (7), (f).

aa. At Common Law.

It seems that at common law it was only necessary that a minute of the plea be preserved and that it was not the practice to enter it in full except when it became necessary to make up

the record. It was a mere minute on the indictment, which the clerk put in form if it afterwards became necessary to make up the record. When written out it appeared in the record as follows: "He being immediately asked how he will acquit himself of the premises above laid to his charge, says he is not guilty thereof, and therefore for good and for ill he puts himself upon the country." State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

bb. Modern Practice.

See ante, "Entry by Attorney," V, I, 6, c, (7), (b); post, "Record Showing Appearance by Attorney," V, J, 2, b, (3), (b), cc, (bb).

Gratt. 710; Hooker v. Com., 13 Gratt. 763; Sperry v. Com., 9 Leigh 623; Com.

Crump, 1 Va. Cas. 172. See also, Bowles v. Com., 103 Va. 816, 48 S. E. 527; Kibler v. Com., 94 Va. 804, 26 S. E. 858; Shiflett v. Com., 90 Va. 386, 18 S. E. 838; Benton v. Com., 91 Va. 782, 21 S. E. 495; Weatherman v. Com., 91 Va. 796, 22 S. E. 349; Anderson v. Com., 84 Va. 77, 3 S. E. 803; Jones v. Com., 79 Va. 213; O'Boyle v. Com., 100 Va. 785, 40 S. E. 121; Longley v. Com., 99 Va. 807, 37 S. E. 339. See post, "Must Be Shown by the Record," V, J, 2, b, (3), (b), cc.

If, in a felony case, the record show that the defendant "plead not guilty" instead of saying, "The said defendant says he is not guilty," etc., the record is sufficient, as to the plea, to sustain a conviction. It was never necessary for the record to show more than that the defendant entered his "plea of not guilty." State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

When the record shows that the prisoner was led to the bar of the court in the custody of the sheriff, and "thereupon the prisoner, for plea, says that he is not guilty in manner and form as the state in her indictment against him has alleged, and of this he puts himself upon the country," it is sufficiently shown that he pleaded in person. State v. Allen, 45 W. Va. 65, 30 S. E. 209.

The record of a prosecution for felony must show that the accused entered his plea of not guilty in his own proper person. State v. Tucker, 52 W. Va. 420, 44 S. E. 427; State v. Beatty, 51 W. Va. 232, 41 S. E. 434; State v. Sheppard, 49 W. Va. 582, 39 S E. 676; State v. Allen, 45 W. Va. 65, 30 S. E. 209; State v. Cross, 44 W. Va. 331, 29 S. E. 527; State v. Campbell, 42 W. Va. 251, 24 S. E. 875; State v. Parsons, 39 W. Va. 464, 19 S. "An order entered in a case on the E. 876; State v. Sutfin, 22 W. Va. 771; 6th day of April, 1883, appears as folState v. Greer, 22 W. Va. 800; State lows: 'This day came the state by her V. Conners, 20 W. Va. 1; State prosecuting attorney as well as the deConkle, 16 W. Va. 736; State v. fendant by counsel; thereupon the de

mere formal defect, at any time amend-
able, and it does not render the ver-
dict bad.' Judge English, who deliv-
ered the opinion of the court in that
case, çites in support of his views,
Gould on Pleading, 290, s. 20; Bab-
cock v. Huntington, 2 Day 392; Whit-
ney v. Cochran, 9 Mass. 532; First Nat.
Bank v. Kimberlands, 16 W. Va. 555;
Bishop Cr. Proc. S. 1354." State v.
Beatty, 51 W. Va. 232, 41 S. E. 434.
(h) Effect as Putting in Issue Material

fendant for plea says he is not guilty in manner and form as alleged in said indictment, and of this he puts himself upon the country, and the state doth the like, and the issue is thereon joined.'" It was held, that so far as this record shows, the defendant was not present when the plea was entered. State v. Sutfin, 22 W. Va. 771. See post, "Record Showing Appearance by Attorney," V, J, 2, b, (3), (b), cc, (bb). Correction of Record. Where the record shows that "T. who stands indicted for felony, was this ɗay set to the bar in custody of the jailer of W. county, thereupon the said prisoner for plea says he is not guilty as in the indictment against him is alleged and of this he puts himself upon the country, and the prosecuting attorney doth the like and issue is thereon joined," and on the 14th day of February the jury rendered a by the rulings of the court in reference

verdict of guilty on said plea, and on the 14th day of March following defendant moved the court to correct the record of the plea of not guilty entered January 30, and tendered affidavits of defendant, of defendant's counsel and others in support of the motion to show that the plea of not guilty was entered by defendant's at torney and not by him in person; held, not error to refuse the filing of such affidavits. State v. Tucker, 52 W. Va. 420, 44 S. E. 427.

cc. Omission of Similiter.

See ante, "Puts Accused upon Trial by Jury," V, I, 6, c, (7), (e).

The omission from the record of the similiter or joinder of issue, in such case, does not vitiate the judgment; for the plea of not guilty, without more, legally puts the defendant on trial by jury, and the similiter is a mere form, although the better practice is to insert it. State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

"It has been held by this court in State v. Aler, 39 W. Va. 549, that 'the omission of the similiter or joinder by the prosecuting officer is, at most, a

Facts.

See ante, "Special Plea of Matter Proper under Plea of Not Guilty," V, I, 6, c, (4), (b).

"The words 'Not Guilty,' are a full and complete answer and response to every allegation contained in the indictment. They are so understood by the court and the prisoner is fully protected in the progress of the trial

to the admission and rejection of testimony, and the prisoner may have the benefit of the court's instructions to the jury upon every proposition of law arising in the case by simply asking for them. His protection lies not in the formal words of his plea but in its legal denial of his guilt of charge laid against him in the indictment and in the fair, impartial and legal trial of the issue thus raised, by jury under the supervision and direction of the court." State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

the

The plea of not guilty operates as a legal denial of the charge laid in the indictment, going to all its allegations. State v. Beatty, 51 W. Va. 232, 41 S. E. 434.

The plea of not guilty to an indictment does not traverse allegations in the indictment of matter outside of the issue. The plea of not guilty puts in issue the guilt or innocence of the offense charged in the indictment. Thomas v. Com., 22 Gratt. 912.

Upon the plea of not guilty the issue is, guilty or not guilty of the offense charged in the indictment. "Not