176 P. 271 | Utah | 1918
The defendant was charged with murder in the first degree, convicted of murder in the second degree, and sentenced to serve a term of fifteen years in the Utah State Prison. He appeals from the judgment.
Defendant’s counsel has assigned a number of errors. We shall, however, consider such only as are
As before pointed out, the records shows an arraignment and plea in due form. The record, however, also discloses that the plea was entered on the 16th day of April, 1917, which was a legal holiday, namely, Arbor Day, on which under our statute, Comp. Laws 1907, section 701, courts may not transact any business except that expressly mentioned in the statute, which, counsel for the defendant insists, does not include the receiving and entering of a plea in a criminal ease.
In Davidson v. Munsey, 27 Utah, 87, 74 Pac. 431, it was held that the courts of this state cannot legally transact any judicial business on a legal holiday. Counsel for the defendant therefore contends that the receiving and entering of the plea on the 16th day of April, 1917, was a mere nullity and of no force or effect whatever. Counsel further insists that a plea was essential to confer jurisdiction on the court to try the defendant, and, having proceeded to trial without a plea, the judgment of conviction is without force or effect. He, however, further insists that even though it be held that the court was not without jurisdiction, yet, in any event, the absence of a plea is fatal to the judgment.
In support of his contentions, counsel cites and relies on State v. Walton, 50 Or. 142, 91 Pac. 490, 13 L. R. A. (N. S.) 811; State v. Rook, 61 Kan. 382, 59 Pac. 653, 49 L. R. A. 186; United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L. R. A. (N. S.) 1181; 8 R. C. L. p. 110. There are a large number of other eases referred to in the foregoing cases to which it is not necessary to refer. The cases cited, as well as some of these referred to therein, support counsel’s contention. Indeed, in the eases cited both from Oregon and Kansas it is held that in case the defendant has not been given an opportunity to plead, and that if he did not plead to the information or indictment, the judgment of conviction is a nullity, and that the defendant was not even placed in
In a number of the foregoing cases, prior decisions holding to the contrary doctrine are expressly overruled. Some of the foregoing cases relate to convictions for misdemeanors; others to felonies; while still others refer to convictions in homicide cases where the charge, like in the case at bar, was murder in the first degree. Many of those decisions are based on a statute which in effect is like ours respecting the right of the appellate court to reverse a judgment. Our stat
“4975. After hearing an appeal the court must give judgment without regard to errors or defects which have not resulted in a miscarriage of justice. If error has been committed it shall not be presumed to have resulted in a miscarriage of justice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment. ’ ’
“5080. Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding nor any error or mistake therein shall render it invalid unless it shall have actually resulted in a miscarriage of justice. ’ ’
Those sections were referred to by this court in State v. Cluff, 48 Utah, 102, 158 Pac. 701, and it is there held that miscarriage of justice is equivalent to an invasion of a substantial right. In other words, this court may not reverse a judgment unless some substantial right of the
In all of the cases last above cited, it is held that the failure to enter a plea of not guilty is not jurisdictional, and that in going to trial and in contesting the state’s evidence the defendant must be assumed to have waived his right to formally enter a plea of not guilty, and, further, that by voluntarily entering upon the trial and contesting the state’s evidence his conduct is tantamount to the entering of a plea of not guilty. In referring to this subject in Hayden v. State, supra, the Supreme Court of Arkansas, speaking through Mr. Chief Justice Cockrill, said:
"la the ease of Ransom v. State, 49 Ark. 176 (4 S. W. 658), it was ruled that a plea of aot guilty waived arraignment, where that form had been omitted. Following up that lead, it was held in Moore v. State, 51 Ark. 130 (10 S. W. 22), that the formal entry of the plea of not guilty, as well as arraignment, was waived by a defendant who voluntarily went to trial as upon a plea of not guilty. That is to say, we treated as done what the court and parties at the trial had regarded as done. But that ease was a misdemeanor, and it is argued that it should not rule in this which is a conviction for felony. • The reasons which obtained in- the former case apply as well in this. The record shows that the appellant*578 was represented by competent counsel, that he voluntarily announced himself ready for trial, and that the cause was treated as at issue upon the plea of not guilty. The defendant was accorded every right that he could have availed himself of under the most formal record of his plea. The only object of the plea was to make an issue. But the whole record attests that an issue was made. To disregard the trial then, and say there was nothing to try because without a plea there was no issue, and without an issue there could be no trial, would be to sacrifice the truth for a system of casuistry which was originally resorted to by the courts only to avoid the bloody consequences of the enforcement of the criminal code of a prior century. The necessity for such niceties of reasoning has passed away.
“The statute, moreover, prescribes that a judgment of conviction for a felony, shall be reversed only for an error to the defendant’s prejudice appearing upon the record. Mansf. Dig. Section 2454. See, too, Cline v. State, 51 Ark. 145 (10 S. W. 225). The defendant has made no suggestion of any prejudice resulting from the failure to make a record entry of his plea, none appears upon the record, and we are unable to conceive that any exists. Knowing, doubtless, of the formal defect in the record, he has taken the chance of an acquittal which would have barred further prosecution. The conviction will have the same effect. ’ ’
The doctrine stated in that case is approved in the later Arkansas cases to which we have referred.
In People v. Osterhout, supra, the Supreme Court of New York, in passing upon a similar question, observed:
‘ ‘ The only point made is that the prisoner was not formally arraigned, and did not formally plead. He was present with his. counsel throughout the trial; did not object that he had been arraigned, and did not ask to plead. After the close of the trial, and after the verdict had been rendered and the jury had been discharged, and on the following day, this point was first made, and made by a motion in arrest of judgment.
“It is manifest that no injury has been done the defendant. No plea has been rejected; no evidence offered by him has been excluded. The defect is merely technical, affecting no rights whatever. If he had refused to plead, the trial would have proceeded just as it has. The trial would not be affected because of an imperfection in the indictment which did not tend to the prejudice of the substantial rights of the defendant upon the merits. Code Crim. Proe. Section 285. Nor may this court on appeal regard technical errors or defects or exceptions which do not affect substantial rights. Section 542. If this section is to have any meaning at all, it applies exactly to a case like the present. ’ ’
The two eases quoted from sufficiently reflect the decisions in the other cases, and hence it is not necessary to refer to
It seems to us that upon merely slight reflection it must be conceded that the conclusion reached in those cases last above referred to is sound. Here the defendant, with his counsel, appeared in open court and announced that he was ready to proceed with the trial. He contested every
We are aware that in the case of People v. Heller et al., 2 Utah, 133, not referred to by counsel, the Supreme Court of the Territory of Utah arrived at a different conclusion. It was there held that, where one is charged with a felony, a plea cannot be waived by the accused, not even if he attempted to do so expressly. That case was decided 38 years ago. No reason is given for such a holding. We can readily conceive why one who is accused of a capital offense may not enter a plea of guilty and thus consent to suffer the death penalty without a trial. To permit one to do so is to permit him to yield up his life without any investigation respecting the facts constituting the offense. That a sound public policy forbids. Where, however, as here, the mere formality of entering a plea is omitted and a trial is had which is conducted, even to the minutest details,, precisely as though a formal plea had been entered, no substantial right of the accused has been invaded or ignored. Under such circumstances, the keenest imagination cannot discover anything the defendant could have gained if a formal plea of not guilty had been entered on some other day than on a legal holiday, nor yet conceive of anything the defendant lost in going to trial and in being tried as was done, without having a plea entered on some other day. The defendant neither waived nor lost anything of substance. Nor can it be said that, in holding that a plea is waived under the circumstances of this case, anything is permitted which is against the public good or against the more or less expansive term called public policy. In voluntarily going to trial and in contesting every step, and in claiming and being granted every right known to the law during the progress of the trial, no other conclusion is permissible than that the defendant by his conduct waived the right to enter a formal plea, and, further, that the manner in which the trial was conducted was tantamount to the entry of a plea. No reason is stated in the early Utah case why
Moreover, since the ease of People v. Heller was decided, the people of Utah have adopted a state Constitution, in which it is provided (article 1, section 13) that one accused of any crime may be prosecuted by information instead of by indictment, and the accused may, with the consent
The case of People v. Heller, supra, is therefore clearly out of harmony with both reason and the great weight of recent authority, and for that reason it should be, and it accordingly is, overruled.
We remark that if the defendant had been acquitted and the state should attempt to try him again for the same offense, and he should enter a plea of former acquittal, we should, without hesitation, sustain his plea; yet, if counsel’s contention and the cases he relies on are sound, such a plea, even after the most exhaustive and fairest trial, would be of no avail. To so hold, it seems to us, is contrary to reason, and would in the end become a most serious reflection upon the administration of justice in criminal cases.
We desire to add that we have considered this case as though no plea had been entered; that is, as though that formality had been entirely omitted. We make this explanation for the reason that the state’s attorney contended at the hearing that the district court was not without jurisdiction in receiving and entering the plea in this case.
It is next contended that the court erred in refusing defendant’s request to charge on the plea of self-defense. There
It is further contended that the court erred in overruling defendant’s motion for a new trial. Counsel, as one ground of his motion for a new trial, alleged that the jury had been guilty of misconduct in separating during the trial, and that one or two of their number had conversed
Finally, it is contended that the court erred in denying a new trial upon the ground that the evidence is insufficient to sustain the verdict. This contention is based upon counsel’s theory of self-defense. We could subserve no good purpose in setting forth the evidence upon that question.
The record discloses that the defendant was ably defended, that the court’s instructions cover every possible
For the reasons stated, the conviction should stand. The judgment is therefore affirmed.