delivered the opinion of the court:
The appellants were indicted, tried and convicted of grand larceny, and sentenced to the penitentiary; but neither of the appellants had been arraigned nor had they pleaded.
The respondents claim that the arraignment and pleading were waived by the defendants in the manner stated in the transcript as, follows: “ When the case was called for trial, and when the jury had been impaneled, and before the trial had proceeded or begun, the court asked the district attorney, in the presence of the defendants and their attorneys, if the defendants had been arraigned, to which he answered ‘Yes,’ and the district attorney asked defendants if they had been arraigned, to which they each answered ‘ Yes.’ Frank Tilford, one of defendants’ attorneys, also answered, ‘Yes, I presume they have,’ whereupon the trial proceeded.”
If this language of the defendants could amount to a waiver under any circumstances, it certainly could not do so at the time it was offered. The jury had been impaneled before the question was asked the defendants; the presumed waiver, therefore, came too late.
But had that language been used before the jury were impaneled it would not have been a waiver of the right to plead. The record must show that the parties pleaded, and in felony cases the pleading cannot be waived. It is -not the “ yes ” or “ no ” of the prisoner that is to decide whether a plea has been entered or not. The record is to be the source of information in such cases. Here the jury were sworn to try the issue joined when no issue had been joined. Their verdict, therefore, was in response to no issue. A verdict rendered under such circumstances ought not to stand.
As this point is decisive of the case it is not necessary to pass upon the other points.
The judgment of the District Court is set aside and a new trial granted.