
    EFFECT OF FAILURE TO ARRAIGN AN ACCUSED PERSON.
    Circuit Court of Hamilton County,
    Anna Emmons v. State of Ohio.
    Decided, June 24, 1911.
    
      Criminal Law — Error in Placing an Accused Person on Triad Without His Having Been Arraigned — Section 18581.
    
    The provision of Section 13581, as to defects in an indictment which shall not be regarded as fatal, does not apply to the case of one who has been convicted of an infamous crime without having been arraigned on the indictment or having entered a plea thereto, and such an omission constitutes reversible error.
    
      A. Lee Beaty, for plaintiff in error.
    
      Arthur G. Friche, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The plaintiff in error was indicted, tried and convicted in the court of common pleas of this county of murder in the second degree.

The error principally relied upon by counsel for plaintiff in error is, that the record of the conviction does not show that the defendant was arraigned on the indictment, that is, there was no plea of “not guilty” to the crime charged.

Section 13629, General Code, provides that the accused shall be arraigned by the clerk of the court or his deputy reading the indictment to him, unless the accused or his attorney waive .the reading thereof, and he shall then be asked by the court whether he is guilty or not guilty of the offense charged; and Section 13634 provides that if the accused plead not guilty such plea shall be entered on the indictment.

In the case of Hanson v. State, 43 O. S., 376, our Supreme Court holds that “the record of a conviction for crime must show that the defendant was arraigned on the indictment”; and in the case of Crain v. U. S., 162 U. S., 625, the Supreme Court of the United States, says that where the record does not show that the accused was ever arraigned, or that he pleaded to the indictment, the conviction must be set aside, as it is better that a prisoner should escape altogether than that a judgment of conviction of an infamous crime should be sustained where the record does not clearly show that there was a valid trial; in this same case the Supreme. Court says, that in its opinion it is the prevailing rule in this country in eases of felony that a plea to the indictment is necessary before the trial can be properly commenced, and unless this fact appears from the records the judgment can not be sustained. Until the accused pleads to the indictment and thereby indicates the issue submitted by him for trial, there is nothing for the jury to try; and the fact that the defendant did so plead should not be left to be inferred from a general r'ecital in some order that the jury were sworn to try the issue joined. The court further says that the rule requiring the record of a trial for an infamous crime to show affirmatively that it was demanded of the accused to plead to the'indictment, or that he did so plead, is not a matter of form only, but of substance in the administration of the criminal law, and that due process of law requires that the accused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed.

We do not think that Section 13581, General' Code, relating to defects iii an indictment that are not fatal, can apply in the case at bar, as the right to plead to the indictment is a substantial one which can not be taken away from the accused.

Finding no other errors in the record, the judgment of the court below will be reversed on the above grounds and a new trial granted.

Judgment reversed.  