IN PENNSYLVANIA. 1. Guilty and not Guilty. "In all cases of felony the prisoner shall be arraigned, and where any person on being so arraigned shall plead not guilty, every such person shall be deemed and taken to put himself upon the inquest or country for trial, without any question being asked of him how he will be tried, and the inquest shall be charged only to inquire whether he be guilty or not guilty of the crime charged against him, and no more. And that wherever a person shall be indicted for treason or felony, the jury empanelled to try such person shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony. "If any prisoner shall, upon his arraignment for any offence with which he is indicted, stand mute, or not answer directly, or shall peremptorily challenge above the number of persons summoned as jurors for his trial to which he is by law entitled, the plea of not guilty shall be entered for him on the record, the supernumerary challenges shall be disregarded, and the trial shall proceed in the same manner as if he had pleaded not guilty, and for his trial had put himself upon the country." cl § 530. Practice in respect to rendering of plea. — When brought to the bar, in capital cases, and at strict practice in all offences whatever, the defendant is formally arraigned, by the reading of the indictment, and the calling on him for a plea. The clerk, immediately after the reading asks, “How say you, A. B., are you guilty or not guilty?"d Upon this, if the prisoner confess to the charge, the confession is recorded, and nothing is done till judgment. e But if he deny it, he answers, "Not guilty," upon which the clerk of assize, or clerk of the arraigns, replies, that the prisoner is guilty, and that he is ready to prove the accusation. After issue is thus joined, the clerk usually proceeds to ask the prisoner, "How will you be tried?" to which the prisoner replies, " By God and my country;" to which the clerk rejoins, "God send you a good deliverance.” g cl Rev. Laws, 1860, Pamph. 436. d 2 Hale, 119; R. v. Hensey, 1 Burr. 643; Cro. C. C. 7. Post, § 2996, 3153. e 4 Harg. St. Trials, 779; Dalt. C. 185. Post, § 2996, 3153. f 4 Bla. Com. 339; 4 Harg. St. Trials, 779; Wh. Prec. 1138. g 2 Hale, Cro. C. C. 7. 219; 4 Bla. Com. 341; Post, § 2996, 3153. Though the prisoner persists in saying he will be tried by his king and his country, and refuses to put himself on his trial in the ordinary way, it will not invalidate a conviction.h When, however, the clerk of the court, upon the arraignment of the prisoners, did not further proceed, upon their pleading not guilty, to ask them how they would be tried, so that they did not make the usual reply, "By God and their country," it was held, that, under the laws of the United States, the plea of "Not guilty" put the prisoners upon the country, by a sufficient issue, without any further express words. i The right of arraignment on a criminal trial may, in some cases, be waived, but a plea is always essential. The court cannot supply an issue after verdict where there has been neither arraignment nor plea, notwithstanding that the defendant consented to go to trial. ¿1 The practice in respect to arraignment will be hereafter more fully detailed. ¿2 Similiter. An omission to insert the similiter in joining issue in criminal cases, may be corrected, as it is usually only added when the record is made up.j In any view, going to trial without a joinder of issue by the prosecution to a plea in bar waives any objection to such non-joinder. j1 Pleas by attorney. - A plea by an attorney of a party indicted for a felony is a nullity; the defendant must plead in person. k It is otherwise, however, in misdemeanors. I Joint pleas. Defendants in an indictment have a right to plead severally not guilty; but a general plea of not guilty by all the defendants is, in law, a several plea. m § 530 a. Double pleading. Can a defendant plead simultaneously the general issue, and one or more special pleas? — At common law, this must be answered in the negative, whenever such pleas are repugnant; as at common law all the pleas filed h R. v. Davis, Gow's R. N. P. 219, and notes there. ji Com. v. McCauley, 105 Mass. 69. k McQuillan v. State, 8 S. & M. See post, § 2992, 3153. i U. S. v. Gibert, 2 Sumner's U. S. 587. R. 20. I U. S. v. Mayo, 1 Curtis C. C. 433. il Douglass v. State, 3 Wis. 820. See fully post, § 2992, 3000, 3153, in a case, are regarded as one. This is the strict practice in England, where the judges in review have solemnly ruled that special pleas cannot be pleaded in addition to the plea of not guilty.n And in this country, in cases where not guilty has been pleaded simultaneously with autrefois acquit, the same course has been followed, and the plea of not guilty stricken off until the special plea is disposed of. n1 In such case, after determining the special plea against the defendant, the present practice in the United States is to enter simply a judgment of respondeat ouster, in all cases in which the special plea is not equivalent to the general issue. This, which is technically the correct practice, is not, however, always pursued. A short cut is often taken to the same result, by directing when special pleas and the general issue are filed simultaneously, or are found together on the record before trial, that the special pleas should be tried first, and, if they are found against the defendant, then the general issue. But, under any circumstances, it is error to try the special pleas and the general issue simultaneously. The special plea must be always disposed of before the general issue is tried. n2 If a special plea is determined against the defendant, is the judgment always respondeat ouster? Unless upon a trial by jury on a special plea which embraces the general issue, this question ought now to be answered in the affirmative. The old distinction taken in this respect between felonies and misdemeanors, being no longer founded in reason, should be rejected in practice. And the only consistent as well as just course is, to harmonize the present fragmentary rulings in this relation into the principle that in all cases the question of guilty or not guilty is one which the defendant is entitled of right, no matter how many technical antecedent points may have been determined against him, to have squarely decided by a jury. o n R. v. Charlesworth, 9 Cox C. C. 40; R. v. Strahan, 7 Cox C. C. 85; R. v. Skeen, 8 Cox C. C. 143; Bell C. C. 97; contra, 1 Stark. C. P. 339. n1 State v. Copeland, 2 Swan, 626; Hill v. State, 2 Yerg. 248. As to pleas in abatement, see post, § 537, 568. n2 Com. v. Merrill, 8 Allen, 545; Foster v. State, 39 Ala. 229; Moun tain v. State, 40 Ala. 344; Henry v. State, 33 Ala. 389; Nonemaker v. State, 34 Ala. 211; Solliday v. Com. 4 Casey (28 Penns.), 13. See R. v. Charlesworth, ut supra; R. v. Roche, 1 Leach, 160. Post, § 568. o Post, § 572; 2 Hale P. C. 255; Barge v. Com. 3 Pen. & Watts, 262; U. S. v. Williams, 1 Dillon, 485; Hard § 531. Dumbness. In an English case, a dumb person was to be tried for a felony; the judge ordered a jury to be empanelled, to try whether he was mute by the visitation of God; the jury found that he was so; they were then sworn to try whether he was able to plead, which they found in the affirmative, and the defendant by a sign pleaded not guilty; the judge then ordered the jury to be empanelled to try whether the defendant was now sane or not, and on this question directed them to say, whether the defendant had sufficient intellect to understand the course of the proceedings, to make a proper defence, to challenge the jurors, and comprehend the details of the evidence, and that if they thought he had not, they should find him of non-sane mind. p In Massachusetts, a deaf and dumb prisoner was arraigned through a sworn interpreter, his incapacity having first been suggested to the court by the solicitor general, and the trial then proceeded as on a plea of not guilty. q Plea of guilty reserves motion in arrest.— By a plea of guilty, defendant first confesses himself guilty in manner and form as charged in the indictment; and if the indictment charges no offence against the law, none is confessed. r When plea of guilty can be withdrawn. The court may, at its discretion, allow a plea of guilty to be withdrawn, even after the overruling of a motion in arrest of judgment, and this is not subject for error. 8 Amending of record as to mistake. — In plain cases, this can be done by consent. Thus, where a defendant, against whom several indictments have been found, intending to plead guilty to one, by mistake pleaded guilty to another, it was held that the error could be corrected after entry of the plea on the minutes of the court. sl Sentence after plea of guilty. When there is a plea of guilty, the court may ascertain by witnesses the degree of the offence. t ing v. State, 22 Ark. 210; Foster v. See post, § 532; 1 W. & S. Med. J. Com. W. & S. 77; Buzzard v. State, § 95. 20 Ark. 106; Ross v. State, 9 Mo. 696. As to demurrer, see conflicting decisions, ante, § 528; as to misdemeanors, when the special plea involves facts of general issue, see contra, State v. Allen, 1 Ala. 442; Guess v. State, 1 Eng. 147. q Com. v. Hill, 14 Mass. 207. r Fletcher v. State, 7 Eng. 169. s State v. Cotton, 4 Foster, 143; R. v. Brown, 17 L. J. M. C. 145. See State v. Salge, 2 Nev. 321. s1 Davis v. State, 20 Geo. 674. t Dick v. State, 3 Ohio St. R. 89. p R. v. Pritchard, 7 C. & P. 303. Post, § 3422. § 532. When plea of not guilty can be entered by order of court. At common law, when a prisoner stood mute, a jury was called to inquire whether he did so from dumbness ex visitatione Dei, or from malice; and unless the former was the case, he was sentenced as on conviction. u In England, and in each of the United States, however, statutes now exist enabling the court, where the prisoner stands mute, to direct a plea of not guilty to be entered, whereupon the trial proceeds as if he had regularly pleaded not guilty in person. v § 533. The plea of nolo contendere has the same effect as a plea of guilty, so far as regards the proceedings on the indictment; and a defendant who is sentenced upon such a plea to pay a fine is convicted of the offence for which he is indicted. The advantage, however, which may attend this plea is, that when accompanied by a protestation of the defendant's innocence, it will not conclude him in a civil action from contesting the facts charged in the indictment. w In Massachusetts, under St. 1855, c. 215, § 35, a defendant in a prosecution on that statute cannot be adjudged guilty on a plea of nolo contendere, unless it appears by the record that the plea was received with the consent of the prosecutor. w 2. Plea to the Jurisdiction. § 534. Where an indictment is taken before a court that has no cognizance of the offence, the defendant may plead to the jurisdiction, without answering at all to the crime alleged; x as, if a man be indicted for treason at the quarter sessions, or for rape at the sheriff's tourn, or the like; y or, if another court have exclusive jurisdiction of the offence. z Such pleas are not common, the easier and simpler course being writ of error or arrest of judgment. § 535. A. was indicted in the city of New York, for obtain u1 Ch. C. L. 425; Turner's case, Ohio, 542; Com. v. Moore, 9 Mass. R. 402. v R. v. Schleter, 10 Cox C. C. 409; R. v. Bernard, 1 F. & F. 240; in which latter case the finding of the jury that the defendant was mute from nature, was dispensed with. See U. S. v. Hare, 2 Wheel. C. C. 299. w Com. v. Horton, 9 Pick. 206; Com. v. Tilton, 8 Metc. 232. w1 Com. v. Adams, 6 Gray, Mass. 359. x 2 Hale, 286. z 4 Bla. Com. 383. See Wh. Prec. 1145, for forms. |