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cused of felony. Defendant made no objec- ! roll, although prepared by the clerk, is the tion to the irregularity complained of until record of the court. To it alone can we look after verdict, nor does it affirmatively ap to ascertain what the action of the court bepear that an entry of a plea would have low was, and upon it determine whether any affected the result, or that defendant was

error was committed. The duty of the clerk in any manner prejudiced by the oversight. in such matters is ministerial undoubtedly, The record not only fails to disclose that

and subject to the supervision and control any plea was entered, but it appears from af of the court. But his record is the higliest fidavits in the record that he was not asked record of the judicial action of the court. whether he desired to enter a plea of guilty It imports verity, and, until impeached by or not guilty, and that at no time during the court itself, is conclusive of the matters the trial did defendant refuse to plead. It to which it relates. Schirmer v. People, 33 is urged by counsel for the state, and held

Ill. 276.” The court accordingly held that by the learned court below, that such plea

no conditions could be presumed to exist othis not essential where no objections are made thereto during the trial, and that the alleged

er than as appear in such record; that the

record might be amended to conform to the error is of no avail to defendant unless it

facts (wbere no adverse rights have intervenappears from the record that he lost some

ed), but, since this had not been done, it rights by reason of a plea not having been

would be presumed that no record of such entered. B. & C. Comp. § 1328. indicates

proceedings could be made other than as what shall constitute an arraignment, and is as follows: "The arraignment must be

there disclosel. It follows under the deci

sions referred to that it is unnecessary for made by the court, or by the clerk or the dis

us to determine whether the affidavits in the trict attorney under its direction, and con

record can be considereil, since the record sists in reading the indictment to the defend.

fails to disclose that Walton was given an ant, and delivering to him a copy thereof and

opportunity to answer as to whether he was the indorsements thereon, including the list

guilty or not guilty, or refuse to do so. His of witnesses indorsed on it or appended there

rights will, therefore, be determined under to, and asking him whether he pleads guilty

the record before us without reference to the or not guilty to the indictment.” It appears

affidavits, and it will accordingly be presumfrom the record that all the requirements of

ed that no plea was either made or refused. this provision were complied with, except

The Criminal Code of this state provides: the record does not disclose that defendant

"If the demurrer be disallowel, the court was asked "whether he pleads guilty or not

must permit the defendant, at his election, to guilty to the indictment.” If essential to a

plead, which he must do forthwith, or at conviction of a felony that such plea must be

such time as the court may allow; but if entered before proceeding to trial, the same

he do not plead, the judgment must be given rule would necessarily apply with reference

against him.” B. & C. Comp. & 1364. A deto the requirements of the record of the pro

murrer was filed by the defendant, and, after (eedings in this respect, as under the stat

it was overruled, had he refused to plead, ute making the presence of the defendant

this provision of the statute would require necessary during the proceedings. The rule

judgment to have been given against him. is settled in this state that this fact must

Our statute (section 1375) further provides affirmatively appear in the record of the

that "an issue of fact arises (1) upon a plea trial. State v. Cartwright, 10 Or. 193; State

of not guilty, or (2) upon a plea of former v. Gilbert, decided May 14, 1883 (unreported).

conviction, or acquittal of the same crime"; In the latter case two indictments were filed

(Id. § 1370) that "an issue of law arises upagainst the defendant, accusing him of mur

on a demurrer to the indictment"; and (Id. der. With the exception of the names of the

§ 1377) that "an issue of law must be tried persons alleged to have been murdered, there

by the court, and an issue of fact by a jury, was no difference in the indictments. The

of the county in which the action is triable." defendant was tried under both indictments

It is maintained by counsel for the state, at the same term, convicted, and sentenced to

and suggested in the decision of the circuit death; but in the journal entry of the judg

court, that, as a person charged with a crime ment the clerk neglected to state any crime

is permitted at his election to plead forthfor which the conviction was had, nor was

with or at such further time as may be althere any record of the trial indicating upon

lowed by the court, if he does not so plead, which of the indictments the defendant was

judgment must be entered against him, and tried, while both appeared in the transcript

that, if the defendant desires to enter a of the judgment roll. In passing upon the

plea, it becomes his imperative duty to make record, Mr. Chief Justice Watson says: “It

it manifest: citing People v. King. 28 Cal. has been suggested thi. this court should

265. as sustaining that view'. In that case presume that the proceedings in the court

the defendant, when called upon to plead, below were regular, and that the duplicity in

acting on the advice of his attorney, refused the record has occurred through the inadvert

to do so, whereupon the court ordered a plea ence or mistake of the clerk in making up the

of not guilty to be entered, and impaneled a judgment roll, of which the record before us

jury before which he was tried, resulting in is simply a transcript. But this judgment

I conviction. The statute of that state, like

ours, provides that, in case a defendant re in People v. King, 28 Cal. 205, which is idenfused to plead, judgment should be entered tical with B. & C. Comp. & 1361, quoted abore, against him. Relying on the theory that is mentioned in People v. Corbett, supra, the trial was irregular because sentenced on concerning which the court say: “The act the verdict of a jury in place of sentence by does not extend to the case of a verdict the court without such verdict, the defendant where there is a plea but no indictment, nor appealed. On this question the court held does it reach the case of a verdict where that the defendant was in no way injured, there is an indictment but no plea. Where as he had not only had every guarantee given either of the two are wanting, it is as fatal him by the statute, but, more than that, he as though both were wanting. The presence had been tried by a jury, and, while it was of both is essential to an issue, and, where the duty of the court to have entered judg there is no issue, an oath administered to the ment without a jury in the manner specified jury would impose no obligation, nor would in the statute, having bad a jury trial, de false swearing on the part of witnesses fendant, not being injured by reason there amount to perjury. That a trial so conductof, was in no position to complain. In hold ed 'would tend to prejudice the defendant in ing that case to be in point here the learned respect to a substantial right'

* is court below evidently overlooked the fact too plain for argument." that the defendant in the case cited refused It is also maintained that defendant could to plead after being given an opportunity to not bave been injured by not entering a plea do so. That the trial court and counsel for as to his guilt or innocence. The same could the state have misapplied the authority last in some instances be said of a person triel considered manifestly appears from later de for a felony and convicted without a jury, cisions on the point in that state, among or where, being represented by counsel, he is which is People v. Corbett, 28 Cal. 328. The tried and convicted in the usual manner, but defendant there was tried and convicted of without being present in person. In State v. grand larreny. After being informed of the Cartwright, 10 Or. 193, it is held, and is the indictment, he asked, and was given, four universal rule, that the presence of the dedays in which to plead, but did not plead on fendant, when tried for a felony, cannot be the day set for that purpose. Two weeks waived, and is essential to a valid conviclater he was brought into court, and through

tion. As stated in Ilot v. Utah, 110 U. S. his counsel moved for a separate trial; the 574, 579, 4 Sup. Ct. 202, 204, 28 L. Ed. 262: indictment being against him and two others. "The public has an interest in his life and The motion was granted, a jury impaneled, liberty. Neither can be lawfully taken exwitnesses sworn on behalf of defendant, and cept in the mode prescribed by law. That the case argued to the jury, which, after re which the law makes essential in proceedings ceiving their charge, returned a verdict of involving the depriration of life or liberty guilty. The court there states that there was cannot be dispensed with or affcrted by the manifestly no arraignment, that the indict consent of the accused, much less by his ment was not read to the defendant, nor a mere failure, when on trial and in custody, copy tendered to him, nor defendant asked to object to unauthorized methods." The law whether he would plead guilty or not guilty does not even permit the attorney of a perto the indictment, and holds: “If the de son charged with a felony to enter a plea fendant had at any time anterior to the trial for him, but requires the defendant to do so pleaded not guilty, the defects in the ar in person. Even on the day set for that purraignment, or rather the omission to arraign, pose it is not customary, nor is it expected, might have been cured, on the ground of that the defendant shall arise and make such waiver. But neither the motion of defend plea known until directed by either the court ant for a separate trial, nor the introduction or district attorney. Ile would have no of witnesses by him, nor the fact that the means of knowing when the particular time case was argued on his behalf to the jury of the day or hour fixed had arrived until nor did all of them combined-cure the want his attention should be called to it in the of a plea. There was not only no arraign usual manner. The prisoner, as a rule. ment, but over and beyond that there was would be the last to risk incurring the court's no issue for the jury to try. Not only did displeasure by rising unsolicited at an imthe defendant not plead; but, inasmuch as proper moment to announce he was ready to the statute opportunity for pleading was nev plead. It is not, therefore, to be expected er extended to him, he was never under any that the defendant should make his desire in obligation to plead. A verdict in a criminal that respect manifest until called upon to do case, where there has been neither arraign so. The attorney might think a plea of guilty ment nor plea, is a nullity, and no valid judg. inadvisable, and yet the defendant himself, ment can be rendered thereon. Douglass v. for reasons unknown to his counsel, may deState, 3 Wis. $20; 1 Whar. $ 530. And so is sire to enter such plea. His rights in this a rerdict rendered upon a plea put in by the respect are such that his attorney can neiattorney of a party indicted for a felonious ther exercise nor waive for him. The case assault with intent to rob. McQuillen v. at bar furnishes a good illustration of an State. S S. & M. 587." Section 296 of the instance where the public has an interest in •'alifornia Code (St. 1851, p. 244, c. 29) quoted į the proper trial of the person charged with

a crime. Here we have a defendant, who, before any man 'shall be held to answer for when on trial, was but 17 years of age, and a capital or otherwise infamous crime,' it is sentenced to 20 years' imprisonment in this absolutely indispensable that the nature of case and 5 years' additional in another case, the accusation as contained in tlie indictment here pending. He was tried under constitu should be made known to him, that he may tions guaranteeing that no man shall be con enjoy the privilege of assenting or dissenting, victed or deprived of his liberty without by plea of guilty or not guilty, to the char21 due process of law, and that "laws for the alleged." State v. Strauh. 16 Wash. 111. 17 punishment of crime shall be founded on the Pac. 227, is cited as holding to the contrary principles of reformation, and not of vin- i rule, but that case is not in point, and the dictive justice.” Const. art. 1, § 15. Yet it is statements there on the question here incontended that he should remain imprisoned volved are mere dicta, for p reason that the for a quarter of a century without having defendant in that instance did, in fact, enbeen convicted in the manner prescribed by ter a plea, and the same was shown by a our statute. If innocent, the public may nunc pro tunc entry of an order curing the necd, and is entitled to, his services as a defect. Numerous cases are cited in the citizen, even though he should desire to

opinion of the learned court below and by the waive all his legal rights and seek imprison state as sustaining respondent's contention, ment. If guilty, not only the defendant, but but, after a careful examination thereof, we the public, as stated, is entitled to any re find that, owing to the facts surrounding the duction of sentence or other benefits that various cases upon which the decisions there may have been possible by the defendant

hinge, few are applicable to the case before showing a desire to be reformed, and throw us. Of the cases cited the following appear ing himselt on the mercy of the court with

to sustain the position that the entry of a the chance, however small it may have been,

plea is not essential under all circumstances, of being permitted to serve a shorter term as

even when the charge is for a felony: Moore a convict and a longer period of his life as

v. State, 51 Ark. 130, 10 S. W. 22; State v. a reformed member of society. In the first Cassady, 12 Kan. 350; People v. Bradner, 107 act proposed in this country for proportion

X. Y. 1, 13 N. E. S7: Tarver v. State, 93 Ga. ing crimes and punishments, prior to which

222, 21 S. E. 381; State v. Winstrand, 37 Iowa, (1778) even many small offenses were capital,

110. The case of State v. Jerry, 3 La. Ann. it was stated that “the reformation of of

576, decided in 1848, is probably the first on fenders was an object worthy of the atten

record, and State v. Cassady, supra (1874) imtion of the law, and that extermination in

pliedly overruled by subsequent decisions of stead of reforming the accused weakened the

that court, the second to hold to this view. state by cutting off so many who, if reform

The decision in State v. Jerry, however, is ed, might be restored sound members to so

not in harmony with the subsequent decisions ciety, who, even under a course of correction,

of that state. The case of State v. Chenier, might be rendered useful in various labors

32 La. Ann. 103, makes no reference to the for the public. * * *" 1 Jefferson's Works

State-Jerry Case, but, notwithstanding the plea (Ed. of 1903) p. 218.

was entered after the beginning and before In Elick v. Wash. Territory, 1 Wash. T.

the close of the trial, the judgment of the 138, an Indian was tried and convicted of

trial court was reversed; the appellate court murder after the entry by his counsel of a

stating: "We cannot sanction such a departplea of "not guilty.” On appeal his failure ure from ancient landmarks in criminal proto plead in person was assigned as error; cedure. The prisoner must be arraigned, and and, in passing on this point, the court make

must plead to the indictment before the case the following observation: "Articles 5 and

is set down for trial or tried. It may be that 6, amendments to the Constitution of the

in this particular case no prejudice was United States, among other rights secured to

wrought to the accused. Still we think it unthe accused, declare 'the accused shall enjoy safe to sanction such irregularities in capital the right to be informed of the nature and

cases.” See, also, State v. Hunter, 43 La. cause of the accusation' against him; and. Ann. 157, 8 South. 621; State v. Brackin, 113 however the law may be in inferior crimes, La. 879, 37 South. SC3. It will be observed in capital cases, when the prisoner is put up that the courts holding to the rule invoked by on his trial, this right cannot be waived by the plaintiff do so on the assumption that the the counsel nor denied by the court. Nor is entry of a plea is a matter of form and not it an answer to this to say that a waiver of of substance, while those holding to the docarraignment by counsel and entering a plea trine here recognized declare the plea esof not guilty by counsel secure to the prison sential to an issue, without which there can er all the benefits of an arraignment in per be nothing to try. The authorities supportson or a plea of not guilty entered by prisoner ing the position urged by the state, with but in person, and that thereafter prisoner should one exception (Martin v. Territory, 14 Okl. not be perraitted to except to what was not to 593, 78 Pac. 88), were filed prior to the decision his disadvantage on the trial. The prisoner, in Crain v. United States, 162 U. S. 62.3, 16 if guilty, might consider it to his interest to Sup. Ct. 932, 40 L. Ed. 1097, in which, alplead guilty and put himself upon the mercy though the omission of the plea was there of the jury or court. But, whether so or not, raised for the tirst time, the court fully sus

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tain the rule here insisted upon by defend lief is not founded upon any clear, distinct, ant. The statute under which the defendant affirmative statement of record, but upon inin that case was tried is, on all material ference merely. That will not suffice. We points, similar to the Criminal Code of this are of opinion that the rule requiring the recstate, including, also, provisions to the same ord of a trial for an infamous crime to show purpose as B. & C. Comp. 88 1404, 1484, to affirmatively that it was demanded of the the effect that any technical errors and im accused to plead to the indictment, or that perfections or departure from the form or he did so plead, is not a matter of form only, mode prescribed by the Code shall be disre but of substance in the administration of the garded unless it actually prejudiced or tends criminal law. Consequently such a defect in to the prejudice of the defendant. Mr. Jus the record of a criminal trial is not cured by tice Harlan, speaking for the court, so clear section 1025 of the Revised Statues [U. S. ly states the law on the subject, and gives Comp. St. 1901, p. 720], but involves the subsuch cogent reasons for the doctrine an stantial rights of the accused. It is true that nounced, that we quote extensively therefrom the Constitution does not, in terms, declare as follows: "The views we have expressed that a person accused of crime cannot be triwould seem to be the necessary result of sec ed until it be demanded of him that he plead, tion 1032 of the Revised Statutes [U. S. or unless he pleads, to the indictment. But Comp. St. 1901, p. 722), which provides: it does forbid the deprivation of liberty with"When any person indicted for an offense out due process of law; and due process of against the United States, whether capital or law requires that the accused plead, or be orotherwise, upon his arraignment stands mute dered to plead, or, in a proper case, that a or refuses to plead or answer thereto, it shall plea of not guilty be filed for him, before his be the duty of the court to enter the plea of trial can rightfully proceed, and the record not guilty on his behalf in the same manner of his conviction should show distinctly, and as if he had pleaded not guilty thereto. And not by inference merely, that every step inwhen the party pleads not guilty, or such volved in due process of law, and essential to plea is entered as aforesaid, the cause shall a valid trial, was taken in the trial court. be deemed at issue, and shall, without fur Otherwise the judgment will be erroneous. ther form or ceremony, be tried by a jury.' The suggestion that the trial court would not This statute is based on Act April 30, 17M), C. have stated, in its order, that the jury was 9, § 30, 1 Stat. 119, Act March 3, 1825, C. sworn to try and tried the issue joined,' un6.3, § 14, 4 Stat. 118, and Act March 3, 1835, less the defendant pleaded, or was ordered c. 40, § 4, 4 Stat. 777. It proceeds upon the to plead, to the indictment, cannot be made established principle that before a criminal the basis of judicial action without endangertrial can be legally commenced there must

ing the just and orderly adininistration of be an issue to try, and that a plea by or for the criminal law. The present defendant the accused is essential to the formation of may be guilty, and may deserve the full punthe issue. And the section above quoted re ishment imposed upon him by the sentence of quires the entry of the plea before the trial the trial court. But it were better that he commences. Where the crime charged iş in should escape altogether than that the court famous in its nature, are we at liberty to

should sustain a judgment of conviction of an guess that a plea was made by or for the

infamous crime where the record does not accused, and then guess again as to what was clearly show that there was a valid trial.” A the nature of that plea? Neither sound rea

dissenting opinion appears by Mr. Justice son nor public policy justifies any departure

Peckham, who not only holds it should be from settled principles applicable in criminal

presumed a plea was entered without that prosecutions for infamous crimes. Even if

fact affirmatively appearing in the record, there were a wide divergence among the au but, like all the courts sustaining that view, thorities upon this subject, safety lies in ad

appears to entirely overlook the fact that the hering to established modes of procedure de statute expressly makes a plea essential to vised for the security of life and liberty. an issue, and that without such a plea it Nor ought the courts, in their abhorrence of

would necessarily result in the conviction of crime, nor because of their anxiety to enforce the person charged with a crime without an the law against criminals, countenance the issue having been tried, and also fails to careless manner in which the records of cas take into consideration the further important es involving the life or liberty of an accused feature that the public is interested in seeing are often prepared. Before a court of last that a person is not deprived of either life resort affirms a judgment of conviction of, or liberty without a trial in the manner preat least, an infamous crime, it should appear scribed by law. affirmatively from the record that every step The authorities sustaining the principles

ecessary to the validity of the sentence has enunciated in Crain v. United States, supra, been taken. That cannot be predicated of and here recognized, are numerous, among the record now before us. We may have a which are 4 Bl. Comm. pr. 322, 323, 341; 1 belief that the accused, in the present case, Bish. New Cr. Proc. $$ 733, 801: Wharton did, in fact, plead not guilty of the charges Am. Crim. Law. § 530; ('rain v. I'nited States, against bim in the indictment. But this be- i 102 U. S. 625, 10 Sup. Ct. 932, 40 L. Ed. 1097;

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Hopt v. Urited States, 110 U. S. 579. 4 Sup. Ct. 202, 28 L. Ed. 262: Shelp v. United States, 26 C. C. A. 570, 81 Fed. 694; Childs v. State, 97 Ala. 49, 12 South. 441; Terr. v. Blevins, 4 Ariz, 68, 77 Pac. 616; People v. Corbett, 28 Cal. 328; People v. Monaghan, 102 Cal. 229, 36 Pac. 511; Ray v. People, 6 Colo. 231; Hoskins v. People, 84 III. 87, 25 Am. Rep. 433; Parkinson v. People, 135 Ill. 101, 23 N. E. 761, 10 L. R. A. 91; Dansby v. United States, 2 Ind. T. 456, 51 S. W. 1083; Hicks v. State, 111 Ind. 402, 12 N. E. 522; State v. Baker, 57 Kan. 541, 46 Pac. 947; State v. Chenier, 32 La. Ann. 103; State v. Hunter and Frank. 43 La. Ann. 157, 8 South. 624; State v. Brackin. 113 La, 879, 37 South. 803; Commonwealth v. Hardy, 2 Mass. 303; Sartorious v. State, 24 Miss. 602; Hill v. People, 16 Jich. 351; Grigg v. People, 31 Mich. 471; State v. Vanhook. 88 Mo. 103; State v. Saunders, 53 Mo. 231; Beck v. United States, 145 Fed. 625, 76 C. C. A. 417; Barker v. State, 54 Neb. 33, 74 N. W. 427; Browning v. State, 54 Neb. 203, 74 N. W. 631; Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441; Jefferson v. State, 24. Tex. App. 535, 7 S. W. 241; Douglass v. State, 3 Wis, 820; People v. Heller et al., 2 Utah, 133; Davis v. State, 38 Wis. 487; Elick v. Terr., 1 Wash. T. 136.

It is true that the statute making a plea essential to an issue is merely declaratory of the common law, but the fact that it does so merely supplements the reason for holding to the well established landmarks in this particular, for it is evident from the embodiment of this provision in our Code that this requirement is deemed by the lawmaking bodies of the country a wise one, and, if wrong, the power to effect the change is, and should remain, a legislative, and not a judicial, function. The statute, by its terms, has expressly declared the entry of a plea to he essential to an issue, and its language in this respect bei:g clear and free from doubt, we must recognize its provisions so long as in force.

The judgment of the court below should be reversed, and a new trial ordered.

KING, C. An information was filed Sep. tember 12, 1904, against defendant under B. & C. Comp. § 1771, charging him with an assault with a dangerous weapon by shooting one 0. Nelson, for which defendant was tried, convicted, and sentenced to imprisonment in the penitentiary for a term of five years. The defendant here is the same person charged with the crime of assault and robbery of one Emmanuel Johnson, in which case an opinion is filed at this time. Both cases were tried at the same term of the circuit court, resulting in conviction in each case and in appeals to this court.

The two cases were submitted together, similar errors being relied upon in each, consisting of the alleged erroneous order of the court below in overruling objections made to imposing sentence, which were there interposed on the ground that defendant was tried and convicted without being called upon to enter a plea as to his guilt or innocence. The only difference between the two proceedings, as disclosed by the record thereof, is that in this case the defendant, through his counsel in open court, by written motion, asked for a postponement of the trial, while in the action charging him with assault and robbery no continuance was requested. In both actions it is maintained that defendant was not injured by his failure to enter a plea; but in the case before us it is specially insisted by the state that since under B. & C. Comp. $ 1379, defendant was not entitled to move for a continuance until the case was at issue on a question of fact, and as such issue could have been formed only by a plea of not guilty, or by refusal to plead (B. & C. Comp. $ 1375), it will be presumed that defendant either pleaded or refused to do so, and that, if such presumption cannot follow, it must then be held that defendant, by asking a postpone. ment of the trial, and thereafter submitting to the proceedings without calling attention or in any manner objecting to the irregularity until after verdict. waived his rights to be called upon to enter a plea. All questions suggested here, except as to the effect of the motion for postponement, are considered and determined in our opinion filed at this time, in State v. Walton, above adverted to.

That it cannot be presumed a plea was en. tered by reason of any proceedings noted in the record, from which an inference to that eifert may be drawn, is clearly settled adversely to the position maintained by plaintiff

(31 Or. 574)

STATE v. WALTON.

(Supreme Court of Oregon. Aug. 27, 1907.) 1. CRIMINAL LAW-APPEAL-PRESUMPTIONPLEAS.

Though, under B. & C. Comp. § 1379, a defendant is not entitled to move for a continuance till i he case is at issue on a question of fact, and such an issue can be formed only by a plea of not guilty, or by refusal to plead, it will not be presumed from the fact that defendant asked for a continuance that he had either pleaded or refused to do so.

[Ed. Note.For cases in noint, see Cent. Dig. vol. 13, Cri'ninal Law, $ 27.3.) 2. SAME-ARRAIGXMEXT-WAIVER.

It being essential to a conviction of a felony that defendant be arraignml, 2 ("annct waive an arraignineut by asking for a continuance

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