Douglass v. State

| Wis. | Jun 15, 1854

By the Court,

Smith, J.

It appears from tire record in this case, that, at the October term, AID. 1853, of the Jefferson Circuit Court, the defendant below was indicted for erecting and maintaining a nuisance ; that the said defendant was arrested the 19th day of April, A. D. 1854, and recognised for his appearance to answer said indictment at the April term of said court, 1854. That at the April term aforesaid, the District Attorney brought on the trial, the defendant being “personally present, and by his counsel consenting to go to trial.” But it does not appear that he was ever arraigned; that the indictment was ever read to him; that he was called upon to plead, or that he did plead to the indictment. A jury was empanneled, and witnesses examined on both, sides and the defendant was found guilty. Afterwards, at the same term, the defendant moved the court to set aside the verdict and arrest the judgment, on the ground that he had never read, or’ heard the indictment read, and had never pleaded, nor been called upon to plead thereto, and that he had never, in any manner, waived his right to have the indictment read to him, or his right to plead thereto.

The record in this case, fails to show any issue which the jury was called upon to try. It is the business and 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 oftence with which he was charged. 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. This record does not disclose any matter from which we can intend the proper issue. Indeed, the bill of exceptions shows positively, that there was none, either in form or substance. It was probably amere inadvertence, but it is fatal to the proceedings. It would be a dangerous precedent to hold that the court could here supply an issue after verdict, or that the defendant bad waived bis right to a trial of an issue in wbicb be bimself bad joined, when nothing appears upon ^.pe recor& ^¡0 sbow that be had expressly waived gQgk rjgbt. Oliver vs. Judge, 2 Stewart, 488 ; Wilkinson vs. Burnett, 3 Mun., 313 ; 21 Wend, 175 ; Bull. N. P., 320; 4 Humph., 243 ; 3 Gilman, 311; Charlton, 26 ; 1 Alabama R. 635 ; 1 Morris, 17 ; 9 Leigh, 623 ; 3 Mass., 126.

The judgment of the Circuit Court is reversed, and cause remanded for further proceedings.