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.
263
a.
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.�
Johnson v. People, 22 Ill. 314. The judgment
was reversed. In the subsequent case of
Hoskins v. People,
84 Ill. 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.
Page 162 U. S. 642
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 Ill. 314;
Yundt v. People, 65 Ill. 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 Ill. 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, 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 Colo. 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 Mo. 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 legislature, and not
the court, to change the law on the subject.
To the same general effect are
State v. Wilson, 22 P.
(Kansas) 622, 626;
Jefferson v. State, 7 S.W. (Texas)
Page 162 U. S. 643
244;
Hicks v. State, 12 N.E. (Indiana) 522;
State
v. Agee, 68 Mo. 264;
State v. Saunders, 53 Mo.
234.
The American treatises upon criminal law are to the same effect.
Bishop says:
"It is laid down in a general way that the arraignment and plea
are a necessary part of the proceeding, without which there can be
no valid trial and judgment. With the consent of the court, the
prisoner may waive the reading of the indictment, though without
waiver it will be read even where he has been furnished with a
copy. And as the object of the arraignment is to obtain the plea,
if the prisoner voluntarily makes it without, and it is accepted by
the court, nothing more is required. But without plea, there can be
no valid trial. Nor will the proceeding be rendered good by the
fact that the defendant went to trial voluntarily and without
objection, knowing there was no plea. It must be before the jury
are sworn; afterwards, the plea comes too late."
1 Bishop's Cr.Proc. § 733. "There can be no trial on the
merits without a plea of not guilty."
Id., § 801.
Wharton:
"When brought to the bar in capital cases, and at strict
practice in all cases whatever, the defendant is formally arraigned
by the reading of the indictment and the calling on him for a plea.
. . . The right of arraignment in a criminal trial may in some
cases be waived, but a plea is always essential."
1 Amer.Cr.Law, § 530.
Without citing other authorities, we think it may be stated to
be the prevailing rule in this country and in England, at least in
cases of felony, that a plea to the indictment is necessary before
the trial can be properly commenced, and that unless this fact
appears affirmatively from the record, the judgment cannot be
sustained. Until the accused pleads to the indictment, and thereby
indicates the issue submitted by him for trial, there is nothing
for the jury to try, and the fact that the defendant did so plead
should not be left to be inferred from a general recital in some
order that the jury were sworn to "try the issue joined." The
record should be a permanent memorial of what was the issue tried,
and show whether the judgment whereby it was proposed to take the
life of the accused or to deprive him of his liberty was in
accordance with the law of
Page 162 U. S. 644
the land. In
Hopt v. Utah, 110 U.
S. 574,
110 U. S. 579,
this Court, observing that the public has an interest in the life
and liberty of an accused person, said:
"Neither can be lawfully taken except in the mode prescribed by
law. That which the law makes essential in proceedings involving
the deprivation of life or liberty cannot be dispensed with or
affected by the consent of the accused, much less by his mere
failure, when on trial and in custody, to object to unauthorized
methods."
The views we have expressed would seem to be the necessary
result of section 1032 of the Revised Statutes, which provides:
"When any person indicted for an offense against the United
States, whether capital or otherwise, upon his arraignment stands
mute or refuses to plead or answer thereto, it shall be the duty of
the court to enter the plea of not guilty on his behalf in the same
manner as if he had pleaded not guilty thereto. And when the party
pleads not guilty or such plea is entered as aforesaid, the cause
shall be deemed at issue, and shall without further form or
ceremony be tried by a jury."
This statute is based on the Act of April 30, 1790, c. 9, §
30 (1 Stat. 119); the Act of March 3, 1825, § 14 (4 Stat.
118), and the Act of March 3, 1835, § 4 (4 Stat. 777). It
proceeds upon the established principle that before a criminal
trial can be legally commenced there must be an issue to try, and
that a plea by or for the accused is essential to the formation of
the issue. And the section above quoted requires the entry of the
plea before the trial commences. Where the crime charged is
infamous in its nature, are we at liberty to guess that a plea was
made by or for the accused, and then guess again as to what was the
nature of that plea?
Neither sound reason nor public policy justifies any departure
from settled principles applicable in criminal prosecutions for
infamous crimes. Even if there were a wide divergence among the
authorities upon this subject, safety lies in adhering to
established modes of procedure devised for the security of life and
liberty. Nor ought the courts, in their abhorrence of crime, nor
because of their anxiety to enforce the law against criminals,
countenance the careless manner in which the records of cases
involving the life or liberty of an accused are
Page 162 U. S. 645
often prepared. Before a court of last resort affirms a judgment
of conviction of at least an infamous crime, it should appear
affirmatively from the record that every step necessary to the
validity of the sentence has been taken. That cannot be predicated
of the record now before us. We may have a belief that the accused
in the present case did in fact plead not guilty of the charges
against him in the indictment. But this belief is not founded upon
any clear, distinct, affirmative statement of record, but upon
inference merely. That will not suffice. We are of opinion that the
rule requiring the record of a trial for an infamous crime to show
affirmatively that it was demanded of the accused to plead to the
indictment, or that he did so plead, is not a matter of form only,
but of substance in the administration of the criminal law.
Consequently such a defect in the record of a criminal trial is not
cured by section 1025 of the Revised Statutes, but involves the
substantial rights of the accused.
It is true that the Constitution does not in terms declare that
a person accused of crime cannot be tried until it be demanded of
him that he plead, or unless he pleads, to the indictment. But it
does forbid the deprivation of liberty without due process of law,
and due process of law requires that the accused plead or be
ordered to plead or, in a proper case, that a plea of not guilty be
filed for him, before his trial can rightfully proceed, and the
record of his conviction should show distinctly, and not by
inference merely, that every step involved in due process of law
and essential to a valid trial was taken in the trial court;
otherwise the judgment will be erroneous. The suggestion that the
trial court would not have stated in its order that the jury was
sworn to try and tried "the issue joined" unless the defendant
pleaded or was ordered to plead to the indictment cannot be made
the basis of judicial action without endangering the just and
orderly administration of the criminal law. The present defendant
may be guilty, and may deserve the full punishment imposed upon him
by the sentence of the trial court. But it were better that he
should escape altogether than that the court should sustain a
judgment of conviction of an infamous crime
Page 162 U. S. 646
where the record does not clearly show that there was a valid
trial.
The judgment is reversed, and the case is remanded, that the
defendant may be properly arraigned and plead to the indictment,
and for further proceedings in conformity with law.
MR. JUSTICE PECKHAM, with whom concurred MR. JUSTICE BREWER and
MR. JUSTICE WHITE, dissenting.
I dissent from the judgment of the court in this case. It seems
to me to proceed not alone upon the merest technicality, but also
upon an unwarranted presumption of error arising from the absence
of a formal statement in the record showing that the defendant was
duly arraigned and pleaded not guilty, although the inference that
he was so arraigned and that he did thus plead seems to be plain
from the facts which the record discloses. At a certain period of
English history, when an accused person had no right to be
represented by counsel and when the punishments for crimes were so
severe as to shock the sense of justice of many judges who
administered the criminal law, it was natural that technical
objections which perhaps alone stood between the criminal and the
enforcement of a most severe, if not cruel, penalty should be
accorded great weight, and that forms and modes of procedure having
really no connection with the merits of a particular case should be
insisted upon as a sort of bulwark of defense against prosecutions
which might otherwise be successful, and which at the same time
ought not to succeed. These times have passed, and the reasons for
the strict and slavish adherence to mere form have passed with
them.
In this case, there cannot be a well founded doubt that the
defendant was arraigned and pleaded not guilty. The presumption of
that fact arises from a perusal of the record, and it is, as it
seems to me, conclusive. There is no presumption in favor of
defendant upon a criminal trial excepting that of innocence. Error
in the record is not presumed, but must be shown. A presumption
that proper forms were omitted is not
Page 162 U. S. 647
to be made. There must be at least some evidence to show it. And
yet, because the record fails to make a statement in terms that the
defendant was thus arraigned and did so plead, this judgment is to
be reversed, and that too without an allegation or even a pretense
that the defendant has suffered any injury by reason of any alleged
defect of the character in question. I think such a result most
deplorable.
The record sets out the indictment. It then shows that the
district attorney for the United States appeared in court, and the
defendant in his own person, and by his attorney, also appeared,
and then, on motion by the district attorney, it is ordered by the
court that a jury come to try the issue joined, and a jury is duly
selected, impaneled, and sworn to try the issue joined, and a true
verdict to render according to the law and the evidence. The trial
proceeds, and the jury return a verdict that the defendant is
guilty as charged in the first, second, and third counts of the
indictment. In the bill of exceptions, a document prepared by the
defendant, it is also asserted that a jury was impaneled, sworn,
and charged to try the issues joined in the cause. Can there from
these facts be a doubt, founded upon any fair presumption, that the
defendant had been arraigned and had pleaded not guilty?
That the plea was of that nature must be presumed from the fact
that the jury was summoned to try the issue, and that upon the
trial of such issue, the defendant was convicted on the first,
second, and third counts of the indictment. The evidence stated in
the bill of exceptions is directed solely to the issue of guilt or
innocence. It would be wholly immaterial upon any other issue, and
it is also of such a nature as to show beyond all rational doubt
that it was received upon the trial of the issue raised by a plea
of not guilty. No other presumption than that an arraignment and a
plea of not guilty had been interposed could, from such a record,
be reasonably indulged in. The record further there shows a motion
made in arrest of judgment, and the grounds thereof, among which no
mention is made of any alleged failure to arraign the defendant.
The motion is sustained as to the first and third counts of the
indictment and overruled as to the second,
Page 162 U. S. 648
and the defendant excepts to the ruling. The record then
continues, and states that on motion of the district attorney, the
defendant was brought to the bar of the court in custody of the
marshal, and, it being demanded of him what he has to say why
sentence should not be pronounced upon the verdict, says he has
nothing further to say than as already said. There is no statement
in the record that the defendant, when thus called upon to speak,
said one word or raised any objection as to any failure to arraign
him or take his plea. If there had been such failure, was not that
a time to speak, and would the defendant not then have spoken?
Further, the defendant, after his sentence, obtains a writ of error
from this Court, and files an assignment of error, and yet no
mention is therein made of any absence of an arraignment. Is it
reasonable, upon such a record, to infer that no arraignment was
had, and no plea taken? Is it not, on the contrary, reasonable to
infer that defendant was arraigned, and that he did plead not
guilty? Yet by this decision it results that, unless the record
states in terms an arraignment and plea, a judgment must be
reversed although the presumption that there was an arraignment and
plea arising from the contents of the record is both strong and
uncontradicted.
In the face of such a presumption, the simple failure of a clerk
to make an entry of the fact of arraignment and plea, although both
presumably took place, is yet made a substantial ground for a
reversal of a judgment which actually was rendered in due course of
a criminal prosecution and by a court of competent jurisdiction.
This ought not to be. There is but a mere suggestion at the end of
the brief of the counsel for the plaintiff in error filed in this
Court, where the objection is for the first time raised, that
defendant was not given an opportunity to plead to the indictment
before being put upon his trial never having been arraigned. For
the facts, counsel refer to the record, and that shows what has
already been set forth. I think a clear and necessary inference
arises from the contents of the record that the defendant was
arraigned and pleaded.
Suppose, however, the defendant, through mere inadvertence,
Page 162 U. S. 649
had not been formally arraigned at the bar, and had not in terms
pleaded, but that he was placed on trial without objection on his
part, and both sides treated the case as if he had been arraigned
and pleaded not guilty, could it be plausibly contended that
nevertheless a fatal error had been committed by a neglect of this
form, and that a judgment of conviction must on that account be
reversed? Is it possible that for the first time, a defendant can
in this Court successfully raise this formal objection, and under
circumstances showing a waiver of the rule, and yet obtain a
reversal of the judgment on that ground alone? To my mind, the mere
statement of these questions furnishes their conclusive answer.
Some cases may hold the necessity of a formal plea, and that the
conduct of a defendant in going to trial without any objection, and
as if a plea of not guilty had been entered, did not waive the
necessity of such a plea. Those cases are not based on principles
which, in my judgment, ought now to be followed.
Here, the defendant could not have been injured by an
inadvertence of that nature. He ought to be held to have waived
that which, under the circumstances, would have been a wholly
unimportant formality. A waiver ought to be conclusively implied
where the parties had proceeded as if defendant had been duly
arraigned, and a formal plea of not guilty had been interposed, and
where there was no objection made on account of its absence until,
as in this case, the record was brought to this Court for review.
It would be inconsistent with the due administration of justice to
permit a defendant under such circumstances to lie by, say nothing
as to such an objection, and then for the first time urge it in
this Court.
It is not necessary, however, in this case to place my judgment
upon any doctrine of waiver, and I do not base my dissent upon that
view of the case.
This record is, as I have said, far from showing that through
mere inadvertence the defendant was not arraigned and did not
plead. On the contrary, the necessary presumption arising from the
facts appearing therein is that the
Page 162 U. S. 650
defendant was arraigned and did plead. To reverse the judgment
upon the pure technicality (raised in this Court for the first
time) that the record does not in terms show an arraignment and a
plea, where the presumption arising from the contents of the record
is that both occurred, is to my mind a sacrifice of justice to the
merest and most formal kind of an objection, founded upon an
unjustifiable presumption of error and entirely at war with the
facts as they occurred. If the statute cited in the opinion of the
Court, Rev.Stat. § 1025, does not apply to a case such as
this, it is difficult to think of one for which its provisions
could more properly be invoked.
The judgment should be affirmed.
I am authorized to state that MR. JUSTICE BREWER and MR. JUSTICE
WHITE concur in this opinion.
