Fernandez v. State

7 Ala. 511 | Ala. | 1845

COLLIER, C. J.

— The judgment entry in this case is confessedly regular ; it recites the arraignment, plea, and trial of the prisoners in consecutive order, but it is objected, that this recital is untrue in point of fact, as is shown by the bill of exceptions. It is not indispensable to the regularity of the conviction, that the accused should be formally arraigned. If he is advised of the offence with which he is charged, and is prepared, without hearing the indictment read, to answer it, he may plead. Here, it seems, that the prisoners were in Court, and when the solicitor announced the State ready to proceed with the case, their counsel answered, that they were also ready for trial. This amounts to a recognition, that they were the persons charged in the indictment in the case called, and were prepared to defend themselves against it. This was equivalent to, and in law, a sufficient substitute for an arraignment in due form.

Giving to the admission of the solicitor, the effect which the prisoners’ counsel claims for it, and it appears that the plea of not guilty, was entered for them by the Court, before the case was submitted to the jury. In the State v. Hughes, 1 Ala. Rep. 655, we say, although no formal arraignment of one charged with a criminal offence may be essential, yet the case must be put in a condition for trial before the jury is sworn ; that until the prisoner was called on for a plea, it could not be known whether there would be an issue of fact, or what the issue (if any.) The statute then in force, provided, that if any person on his arraignment for a capital, or inferior offence, shall stand mute, or will not answer to the indictment, the plea of not guilty shall be entered for him on the record, and in either case the Court shall proceed to the trial of the accused, as if he pleaded not guilty, &c. [Aik. Dig. 119, § 37.] This provision has been since superseded by the ninth section of the eleventh chapter of the “Peual Code,” which is in these words: “ If any person on his arraignment, shall refuse, or neglect to plead, the Court shall cause the plea of not guilty, to be entered of record, and proceed to the trial of the cause.” [Clay’s Dig. 462.] The first act we see, required the Court to be active, and call upon the accused to answer the indictment before the plea of not guilty was entered for him; that, now in force, authorizes the plea to be entered and the trial proceeded in, not only upon the refusal, but if there is a neglect to plead. In the case before us, the prisoners declared their readiness for trial when the cause was called, made no objection to the jury which had been selected, but tacitly assented that the solicitor might proceed. To have placed the case in a condition to be tried, it was the duty of the prisoners to have interposed a plea, and not having done so, as we must intend, they were guilty of such neglect as authorized the Court to cause the plea of not guilty to bo entered for them.

It must be observed that the judgment entry is entirely regular, and the question is, whether it should be modified, upon the admission made by the solicitor. Taking it to be strictly true, and it proves nothing more, than, that there was no formal arraignment, and that the prisoners did not plead, but instead of showing that there was not such a case of neglect as authorized the plea of not guilty to be entered, it leaves the reverse to be fairly inferred.

It results from what has been said, that the judgment of the Circuit Court must be affirmed.