136 So. 54 | La. | 1931
The appellant was convicted of murder and sentenced to hang. His appeal brings up six bills of exception, which, however, present only three points.
In bills Nos. 3 and 4 he complains that the grand jury which indicted him and the petty jury which tried him were selected by jury commissioners whose appointment was not made strictly according to the provisions of the Code of Criminal Procedure, and whose oath was not recorded strictly according to law. But jury commissioners are officers, and *1069
when in actual possession of their offices and discharging the duties thereof under color of right, they are at least de facto officers, and their right to hold and exercise their offices cannot be inquired into collaterally for the purpose of annulling their official acts. State v. White,
In bill No. 2 he complains that articles 267 to 273 of the Code of Criminal Procedure are unconstitutional in so far as they require that the sanity or insanity of an accused shall be established by a jury different from that which passes on the general issue of the guilt or innocence of the accused. This question has been examined and disposed of adversely to the contention of the appellant in State v. Lange,
Bills Nos. 1, 5, and 6, all relate to the regularity of the arraignment and plea of the defendant. He was arraigned pending the report of a commission de lunatico inquirando, which afterwards reported him sane. This report of the commission cured any irregularity in the arraignment. State v. Charles,
It is therefore clear that one who stands mute when arraigned, has in fact pleaded not guilty, and the law itself enters that plea in his behalf; for the law does not say by whom that plea shall be entered, but merely that it shall be entered for him, meaning of course that standing mute or refusing to plead shall be taken, not as a plea of guilty, but as a plea of not guilty.
Therefore when the record shows that an accused stood mute or refused to plead, it shows that the accused pleaded not guilty.
Moreover, in this case the accused, when called for trial, announced ready for trial, and voluntarily went to trial without objecting in any way to his not having pleaded (which might have been corrected instanter if necessary); nor did he raise that question except in arrest of judgment. Accordingly he cannot now complain, for "if the defendant voluntarily enters upon the trial without arraignment it shall be considered *1071 as if he pleaded not guilty." Code Cr.Proc. art. 256.
O'NIELL, C.J., dissents from the ruling on Bill No. 2.