
    George Wilson v. The State of Mississippi.
    1. Criminal law: arraignment op accused cannot be waived, nor CAN HE PLEAD BY ATTORNEY IN CASES OP pelony.— Under an indictment for a felony, the accused cannot waive his arraignment, nor can he plead hy attorney. Bishop on Crim. Procedure, § 684; Mo Quillen v. State, 8 S. & M. 587; Chitty’s C. B. 418; Douglas v. State, 3 Wis. 820.
    Error to the Criminal Court of Warren county. lion. E. J. McGarr, judge.
    On the 1st of March, 1867, plaintiff in error was indicted for passing .counterfeit money. An instanter capias was issued, plaintiff in error arrested, and released on recognizance. At the November' Term, 1867, of the court below, plaintiff in error appeared in open court, waived a formal arraignment by his attorney, and pleaded “not guilty” as charged iu the bill of indictment. At the November Term, 1868 (there having been two mistrials previous to the November Term, 1868), the plaintiff'in error was tried and convicted. A motion, in arrest of judgment was made for the following reasons: Eirst, Because plaintiff in error was never arraigned, and could not in person or by attorney waive the same.' Second, Because plaintiff in error never pleaded to the indictment, the plea filed by his attorney being a nullity. The motion was overruled, a bill of exceptions signed, and the plaintiff in .error'sentenced to five years’ imprisonment in the penitentiary. Writ of error to this court. The errors assigned are stated in the opinion of the court. '
    
      Miller <‡ Bi/rohett for plaintiff in error.
    Arraignment of the prisoner is necessary.' The record does not show that the prisoner ever was arraigned. It does show that Inj attorney arraignment was waived, which'cannot lié done where party is charged with felony. 2 Hale, 216; Koscoe’s Cr. Ev. 181; 1 Chitty’s C. L. 414.
    The record shows that the prisoner “ appeared in cotu’t according to the tenor of his recognizance; ” but, although in court, a trial without arraignment is virtually the trial of a party charged with a felony in his absence, which cannot be done. 1 Chitty’s Crim. L. 414, 421.
    In arraignment, the court will not dispense with the prisoner’s standing at the bar, partieulaily in the case of felony. Chitty’s Crim. Prac. 108.
    Want or omission of arraignment sufficient ground for reversing judgment. 1 Chitty’s Crim. Law, 418.
    Defendant never pleaded to the indictment. Plea ly attorney, when prisoner is charged with felony, is a nullity. The defendant must plead in his own proper person. Me Quillen v. The State, 8 Smedes & M. 295 ; Chitty’s Crim. Law, 436, 412 ; Bishop’s Crim. Procedure, 684, and note.
    At terms of the court subsequent to the one at which the defendant waived arraignment and pleaded by attorney, the record shows that “ the defendant at a former term waived arraignment, and pleaded not guiltywhich was not the fact, and which the record itself contradicts. It is incompetent for the clerk at a subsequent term to make any entry of what had transpired at the preceding terms. MeQuillen v. State, 8 Smedes & Marshall, 295.
    Arrest of judgment operates to discharge prisoner.
    
      Jasper Myers, Acting Attorney-General for the State,
    cited Price v. State, 36 Miss. 542.
   Jeffords, J.,

delivered the opinion of the court.

The following are the assignments of error:

1. The court erred in overruling the motion of the plaintiff in error in arrest of judgment against him, there being no legal arraignment and plea.

2. The court erred in going to trial without a legal arraignment and plea by plaintiff in error.

3. The court erred in not setting aside the judgment for want of a legal plea.

The recital in the record shows, that this day came the district-attorney for and on behalf of the State, and the defendant appeared here in court, according to the tenor of his recognizance ; and by his attorney waiving a formal arraignment of the premises, pleads not guilty as charged in the indictment, etc.”

Our Code provides “ that if the defendant, on arraignment, refuses or neglects to plead, or stands nvute, the court must cause the plea of “ not guilty,” to be entered and proceed to trial.” Rev. Code, p. 620, art: 293.

The simple question is raised by this record whether a person charged with the commission of a felony can waive his arraignment and flead by attorney. The defendant cannot waive his arraignment, nor can he plead by attorney. The plea by attorney is no plea. Bishop on Criminal Procedure, § 684; McQuillen v. The State, 8 S. & M. 595; Chitty’s C. L. 418; Douglas v. The State, 3 Wisconsin, 820. WBere tire crime charged reaches the grade of felony, the authorities are clear that the accused must be arraigned and plead inverse», unless he stands mute, or refuses or neglects to plead, in which event the “ court must cause the plea of ‘ not guilty ’ to be entered, and proceed with the trial.”

It does not appear from the record that the defendant stood omite, refused, or neglected to plead. The record not only fails to show that the defendant was arraigned, but it appears afirmar tiveloj that the defendant was not arraigned; that his arraignment was waived, not by himself, but by his attorney. What the defendant could not do in his own proper person, certainly could not be done by his attorney. We are of opinion, therefore, that the judgment and sentence of the court below should be reversed, the cause remanded, and a new trial awarded.  