| Wis. | Aug 15, 1875
Lyon, J.
This case is ruled by that of Douglass v. The
In Douglass v. The State, the offense charged in the indictment was for erecting and maintaining a nuisance. Like a simple assault and battery, this was a mere misdemeanor, and we do not perceive how any distinction can be made in the two cases in respect to the necessity of a plea.
Neither do we think that the defect was cured by the entry, after a verdict, of a plea nunc pro tunc. We have been referred to no authority which supports the opposite view, and are not aware of any rule of criminal practice which supports it. And it may be further observed that the jurors’ oaths prescribed by statute are framed on the hypothesis that the issue is to be inade up before trial. The jury in the circuit court were sworn to <! well and truly try the issue ” between the state and the plaintiff in error according to the evidence. R. S., ch. 179, sec. 4. When the jury were so sworn, and when the verdict was rendered, there was no issue of record to try. The form of the jury oath in the justice’s court is somewhat different, but the import is believed to be the same. R. S., ch. 121, sec. 16.
The statute of 1871, cited by the attorney general, does not reach the case. It provides for correcting certain errors or mistakes in the record by amendment. The plea ordered by the court to be entered is not, in any correct sense, an amendment. The court, by its order, did not attempt to amend anything, but to supply, after verdict, an entire proceeding, which should have been taken before trial, and which was essential to a proper trial.
By the Court. — The j udgments, both of the circuit court and the justice, are reversed.