State v. Saunders
53 Mo. 234
Mo.
1873
Check Treatment
Wagner, Judge,

delivered the opinion of the court.

The accused was indicted for murder in the first degree, and upon a trial, was convicted of the offense of murder in the second degree. After verdict, a motion was made for a new trial, and also in arrest of judgment — both of which motions were overruled. The principal reason assigned in the motion in arrest, was, that the record did not show that the defendant was ever arraigned, or that a plea of not guilty was entered. After this motion was made, the prosecuting officer for the State moved to have a plea of not guilty entered of record, nunc pro tunc, which the court sustained; But it is admitted that no arraignment ever took place, and that no plea of not guilty was ever entered upon the record. The statute provides, that when any person shall be arraigned upon any indictment, it shall not be necessary to ask him how he will be tried; and if he deny the charge in any form, or require a trial, or if he refuse to plead or answer, and in all cases when he does not confess the indictment to be time, a plea of not gmilty shall be entered, and the same proceedings shall be had in all respects, as if he had formally pleaded not guilty. (2 W. S., p. 1095, § 5.)

It is customary and usual to arraign the prisoner, though this need not be done in the solemn manner that was once thought necessary; (State vs. Braunschweig, 36 Mo., 397,) but in all eases where a trial is required, and there is no confession of the allegations of the indictment, the court must enter a plea of not guilty. This is indispensable to make up the issue upon which the defendant is tried.

In the case of the State vs. Weber, 22 Mo., 321, after the prisoner had announced himself ready for trial, and a witness for the prosecution had been examined in chief, it was discovered that the prisoner had never been arraigned, and by order of the court, he was then arraigned and pleaded not gmilty; the jury was re-sworn, and the evidence was then taken and the trial proceeded with, and this was held not to be erroneous.

But there the issues were made up, and the jury re-sworn *237before any evidence went to them in the case. In the present case, the prisoner was tried throughout without any issue being framed on which a trial could be had. It is evident there was no issue either in form or substance. It was undoubtedly a mere inadvertence on the part of the prosecuting officer, but it is fatal to the proceedings. And as there was no issue made or entered of record, it was not permissible to supply one after verdict. Such a proceeding would be exceedingly dangerous, and we are not willing to sanction it.

It is argued that the court erred ■ in the matter of impanneling the jury, but after a careful examination of the question, we have not found any such error as to justify interference in that respect:

The only other point seriously brought to our attention, is the action of the court in giving the instruction, relating to murder in the second degree. The instruction is copied from one approved by this court in the case of the State vs. Joeckel, 44 Mo., 234, and we have seen no reason for changing the opinion therein expressed.

For the error of permitting the State to enter the plea of not guilty after the verdict was rendered, the judgment will be reversed, and the cause remanded.

The other judges concur.