85 Vt. 233 | Vt. | 1911
The respondent, found guilty of the crime-of rape, moved that the verdict be set aside and a new trial granted, for that the cause was submitted to the jury before-he was put to plead to the information. To the overruling; of the motion respondent excepted. The clerk made a minute on his docket showing that the respondent pleaded not guilty. The respondent moved for an order directing the clerk to amend and correct the record in this respect. This motion was also overruled and exception saved.
On this branch of the case the facts found by the Court, are presented. It appears therefrom that on July 24, five or six respondents were severally formally arraigned and pleaded to informations. The state’s attorney then gave notice that this case would be the first for trial. On July 25, other respondents were formally arraigned and pleaded to informations.
The court inquired of respondent Drown and his counsel, present in court, whether they had received a copy of the -information and would be ready for trial at two o’clock in the afternoon. Whereupon, the respondent by his counsel stated that his plea was or would be not guilty, but not having had a copy of the information twenty-four hours as provided by statute, and not being able to get his witnesses, he would not be ready until the next morning.
Soon after the opening of court on the 26th, the respondent and his counsel being present, the court inquired if the respondent was ready for trial, and receiving an affirmative reply from the counsel, the court directed the clerk to call a jury. After the jury had been impaneled, the clerk, not finding a minute of the plea on the information, inquired in the presence and hearing of the respondent and his counsel if the respondent had pleaded to the information, and hearing no response, each-of the judges understanding and believing that the respondent had pleaded on the previous day, the presiding judge announced that the respondent had pleaded not guilty. Thereupon the jury was sworn by the clerk, and the clerk in the presence and hearing.
Neither the respondent nor his counsel interposed any objection, and the trial then proceeded, resulting in a verdict ■of guilty.
It is found that the court was mistaken in believing that the respondent had been formally arraigned and pleaded not ■guilty; and that in fact he was not formally arraigned.
It is further found that the respondent and his counsel knew and understood that the court was laboring under the Impression that the respondent had been formally arraigned ■and pleaded not guilty, and when it was so announced in court after twenty-four hours from the time a copy of the information had been delivered to him had elapsed, they remaining silent and making no objection to the recording of such plea, it was then .and there so recorded by the clerk.
It is contended by the respondent that without an arraignment and plea there was no issue which could be determined by the jury; and that to put him on trial without arraignment .and plea before trial was to deprive him of due process of law. On this question the Supreme Court of the United States has spoken, and we are controlled thereby.
The Criminal Code of Utah requires that in the prosecution for felonies the respondent must be “personally present at the trial.” In Hopt v. Utah, 110 U. S. 579, 28 L. ed. 262, 4 Sup. Ct. 202, the trial of challenges was permitted to take place in the absence of the accused. The government argued that the •trial of the indictment began after and not before the jury was sworn, and consequently that the respondent’s personal presence was not required at an earlier stage of the proceedings. It was held that the trial commenced at least from the time when the work of impaneling the jury began. It was argued that the right of the accused to be present before the triors was waived by his failure to object to their retirement from the court-room, or to their trial of the several challenges in his absence. It -was held that it was not within the power of the accused or his
In Crain v. United States, 162 U. S. 625, 40 L. ed. 1097, 16 Sup. Ct. 952, the record did not show that the accused was. ever formally arraigned, or that he pleaded to the indictment, unless all this was to be inferred from the order made at the opening 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 issue joined.”
The opinion, written by the same learned Justice, after
In substance and effect the Federal statute quoted above is not materially unlike the statute of this State passed in February, 1787, which reads: “That in all criminal cases, where the party indicted or complained of shall, on being arraigned, obstinately refuse to plead and be tried in due course of law, such standing mute shall be adjudged to amount to, and be, a proper traverse or denial of the facts charged in the indictment or complaint, and the trial shall thereupon proceed in like manner, and the same judgment shall be given against the said party, if.found guilty, as if he, she, or they had, on being arraigned, duly plead, and in proper form respectively put themselves on their trial.” Statute of 1787, p. 104. This statute, without material change, has hitherto thus remained. P. S. 2264- By statute of 1797, Ch. 9, Sec. 37, it is provided, “That every person indicted for any crime mentioned in this Act, who shall have duly pleaded to the indictment found against him, and put himself on .the country for trial, shall be permitted peremptorily to challenge six of the jurors, and as great a number further, as .he or she can show good cause for challenging. ”
The law of section 2274 of the Public Statutes, is in sub•stance the same, though the form of the verb is changed from the present perfect to the present tense. These provisions of our statutes, like the Federal statute, clearly contemplate .and require that the respondent shall plead to the information or the indictment, or in a case proper therefor, that a plea be ■entered for him, before the trial commences, that is, before the work of impanelling the jury begins.
In the case at bar this was not done. The respondent was not called upon to plead, and he did not plead, to the information at any time before the trial. It follows that there was no issue legally before the jury, and that the proceedings had did not conform to due process of law. Peculiarly applicable here is the principle declared in the Hopt case and re-affirmed
Clearly the record showing a plea of not guilty by the respondent was incorrect, and the refusal by the trial court to order the same corrected by amendment on respondent’s motion was an abuse of discretion which will be revised in this. Court. With the record so amended, the verdict is erroneous, and the motion to set it aside and for a new trial should have been granted.
The defects in the information urged under the motion in arrest of judgment, if defects they are, can be easily remedied by amendments on remand of the case.
Judgment reversed and cause remanded..