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demanding of him whether he be 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 Pl. Cr. 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, 323 to 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, and of the high treasons,' 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 offence shall be heard, tried and determined exclusively in the courts which are to be holden pursuant to the second section hereof by

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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 offence 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 Michigan, 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 steps 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 offence with which he was charged.

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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 offences, 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. State of Wisconsin, 3 Wisconsin, 715, 716.

In People v. Corbett, 28 California, 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 empanelled; 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, plead 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. Hughes, 1 Alabama, 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,

Opinion of the Court.

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 offence 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 Mississippi, 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 offences a formal arraignment in practice is generally dispensed with. In such cases, where the defendant has pleaded 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 offences 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 Indiana, 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 Illinois, 301, 302, 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. Johnson v. People, 22 Illinois, 314." The judgment was reversed. In the subsequent case of Hoskins v. People, 84 Illinois, 87, which was an indictment for larceny, the court said: "It appears from the record that defendant 'waived arraignment, copy of indictment, list of jurors and witnesses,' etc., but no plea of any kind was entered.

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So far as this record discloses, no plea was entered before the accused was placed on trial. On the authority of the former decisions of this court, this was error. Johnson v. People, 22 Illinois, 314; Yundt v. People, 65 Illinois, 372. It was held in those cases that, without an issue formed, there could be nothing to try, and the party convicted could not properly be sentenced." So, in Parkinson v. People, 135 Illinois, 401, 403, which was an indictment for a felony: "There must be a plea; and if a trial is had, and no plea of any kind is interposed and shown by the record, it is reversible error.”

In State v. Ulger Chenier, 32 La. Ann. 103, 104, which was an indictment for rape, the accused, after the trial commenced, was, by order of court, arraigned and his plea made. The trial then proceeded under the direction of the court. The Supreme Court of Louisiana said: "We cannot sanction such a departure from ancient landmarks in criminal procedure. The prisoner must be arraigned and must plead to the indictment before the case can be set down for trial or tried. It may be that, in this particular case, no prejudice was wrought to the accused. Still we think it unsafe to sanction such irregularities in capital cases."

In Ray v. People, 6 Colorado, 231, which was an indictment. for forgery, it was assigned for error that the accused never was arraigned, and that he never pleaded or was required to plead to the indictment. Upon these points the record was silent. The statutes of Colorado required all criminal trials to be conducted according to the course of the common law, except where a different mode is pointed out. The court held that without an issue there was nothing to try, and if the record failed to show an arraignment and plea prior to trial the proceeding was a nullity.

In State v. Vanhook, 88 Missouri, 105, the Supreme Court of Missouri reversed a judgment of conviction, because the record did not show an arraignment and plea of not guilty, observing that the error was a fatal one, and that it was for the legis lature, and not the court, to change the law on the subject.

To the same general effect are State v. Wilson, 22 Pac. Rep. (Kansas) 622, 626; Jefferson v. State, 7 S. W. Rep. (Texas)