I concur with my brethren of this division in adopting the opinion of ROY, C., but I deem the importance of the holding such, as that a decent respect for the opinions of bench, bar and laity impel a more extended review of the compelling reasons which urge me to give my assent to a doctrine which in this State is well nigh revolutionary. I am not concurring and shall not concur for any half-way or halfhearted reason, as for that in the instant case, counsel spoke into the bill of exceptions, unintentionally and by inadvertence, a plea of not guilty, which plea was thus preserved in a place where it had no legal right to be and is here by accident made to play the unwilling role of a waiver for use in this case only. A concurrence for such an adventitious reason, would do no good and get us nowhere, but would be but a mere revolving around the old sticking point; it would be to reach but not to cross the pons asinorum.
The failure of the record affirmatively to show that defendants entered a plea of not guilty is the *Page 357 point here chiefly vexing us, and the sole one which I purpose discussing. Since we must, out of absolute necessity, impute verity to a record in a criminal case, certified to us by the clerk of the trial court, we are forced to presume that the absence of a showing that such a plea was entered by defendants proves conclusively that it was not entered by them nor for them, and that they went to trial without a formal denial of their guilt. [Crain v. United States, 162 U. S. 625.] Upon the actual question of guilt or innocence, which is tried and determined in any criminal case, there is but one plea or answer, that is, "not guilty." In the last analysis, some defenses are apparently in their nature confessions and avoidances, as for example, the defense of self-defense. But all and all such are comprehended and encompassed by the plea or answer of defendant, orally entered, that he is not guilty. The State avers the defendant is guilty; he says that he is not guilty, and an issue is thus made up to be tried by a jury of the country. So important was the making up of this issue at common law that a case never proceeded till it was made up. So solicitous were the courts at an early day (regrettably this mistaken solicitude survived to a day so near to our own as to be almost unthinkable) that if a defendant refused to plead either guilty or not guilty to the ordinary felony, that is, if he stood mute, he was imprisoned "till he answered" (Britton c. 4 and 22; Fleta, 1. 1 t. 34, sec. 33) except in treason, where standing mute was always equivalent to a plea of guilty — and the accused was condemned and executed without any further procedure. If he refused to plead to a felony other than treason the judgment was "that the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber, and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he could bear, and *Page 358 more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and on the second day, three draughts of standing water, that should be nearest to the prison door, and in this situation this should be alternately his daily diet till he died, or (as anciently the judgment ran), till he answered." [4 Cooley's Black., 327.]
The matter of compelling a plea by solitary imprisonment without sustenance seems to have arisen from a statute, passed in the reign of Edward I. [4 Black. Com., 327.] From the time of the latter till the reign of Henry IV., solitary imprisonment practically without food or water alone was adjudged till the accused answered, but no weights were laid upon the body, so as to hasten death, but as Blackstone says: "I should imagine that the practice of loading him [the accused] with weights, or, as it was usually called, pressing him to death, was gradually introduced between 31 Edw. III. and 8 Henry IV., at which last period it first appears upon our books; being intended as a species of mercy to the delinquent by delivering him the sooner from his torment; and hence [ presume it also was that the duration of the penance was then first altered; and instead of continuing till he answered, it was directed to continue till he died, which must very soon happen under an enormous pressure." [4 Black. Com., 328.]
In the twelfth year of the reign of George III. a statute was enacted which changed the above rule — already changed I gather by desuetude, though still the law — by providing "that every person who being arraigned for felony, shall stand mute or not answer directly to the offense shall be convicted of the same" (4 Black. Com., 329), just as if in all respects a plea of guilty had been rendered. Later, and in the time of George IV., and long after Blackstone wrote, a statute was passed by the English Parliament, similar to our own Missouri statute hereafter discussed providing, *Page 359 in substance, that when the accused stood mute a plea of not guilty should be entered of record for him. [7 8 Geo. IV. c. 28.]
When we adopted the common law and the statutes in force in England, which we did by the Act of January 19, 1816, we got all of the statutes of England, of a general nature, "made prior to the fourth year of James the First," which were not contrary to our territorial laws then in force and not contrary to the Constitution and laws of the United States. [Laws of the Territory of Mo., p. 436.] With such statutes, if it was a statute — and if not, then as a part of the common law (4 Black. Com., 328; Yearbook, 8 Henry IV. 1) we got the law of procedure when no plea, either of guilty or not guilty, was entered by the accused. We did not get the statute of 12 Geo. III. c. 20, which declared that standing mute in all felonies was tantamount to a plea of guilty, but Blackstone leads us to infer, without so saying specifically, that the rule of inflicting peineforte et dure had fallen for years into disuse; that the procedure in all trials for felonies, when the accused stood mute, had been so far colored and influenced by the rule of practice under similar circumstances in trials for treason, that the Statute of Geo. III. c. 20, was merely declaratory of the practice prevailing in all cases for several hundred years prior. At least Blackstone tells us that such doubts were held as to its legality and such repugnance entertained to the theory of the rule that it was rarely carried into practice, and public opinion at last brought pressure to bear to pass a statute abolishing torture to compel a plea.
I have said so much in order to ascertain whether section 5165 of our statute, which is the lion here in the path, is a limitation of the common law, or a grant to the accused of a right not possessed by him at common law. It is fairly plain that it partakes more nearly of the nature of a right granted, than of a *Page 360 limitation imposed. For we have seen that even before the passage of a statute which we did not get when we renounced the Spanish law and took over the common law, the failure to enter a plea had the effect of a conviction, not indeed pursuant to trial upon the charge before the court, but the accused was executed without trial because he would not plead. The only punishments were fines, jail sentences in later times, stripes and death — mostly the latter — for all offenses great and small, for there were no penitentiaries. Then more than two hundred offenses were punishable by death. (Encyc. Brit. says there were 200 capital crimes in the year 1800; 180 in 1819; Blackstone says there were more than 160 in 1789; see 4 Black. Com. 18.] Since attainder and corruption of blood followed conviction either by trial or by confession, and since the property of the accused thereupon escheated to the feudal lord, and since conviction in every case was well-nigh certain, and death followed fast at the heels of conviction, it is no great wonder that there were those willing to suffer death by peine forteet dure in order to save their property from escheating and their families from becoming paupers. Neither is it any great wonder that a shocked public conscience thoroughly aroused by the horrible injustice and brutality of the early criminal law, should when the awakening came have gone as it did to the other extreme and provided well-meant safeguards for the defendant's protection and benefit, which have now grown to be pitfalls for the lagging feet of justice. Great reason there was, when the theft of twelve pence, or of a sheep, or of a piece of woolen cloth, or the killing of a deer was punishable by death and the means of an active affirmative defense were withheld, that every safeguard, though built up of silly fictions, as, for example, benefit of clergy and of sanctuary, should be invoked to save one driven to such crime by hunger or other compelling extremity. *Page 361
The several States, when the War of the Revolution rendered the statute 7 and 8 George III. c. 28, noneffective here, passed statutes very similar to ours, which was passed in its present form in 1835, except that the word "information" was added to it in 1879. [Sec. 5, p. 485, R.S. 1835.] Ever since, this section has read thus:
"When any person shall be arraigned upon any indictment or information, 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 charge to be true, a plea of not guilty shall be entered, and the same proceeding shall be had, in all respects, as if he had formally pleaded not guilty to such indictment or information."
I think it logically follows, regard being had to the precise evil intended to be corrected by the statute 7 8 Geo. II. c. 28, and by section 5165, which was passed in the same spirit, for the same reason and to correct the same ill, that the intent and spirit of this section was absolutely fulfilled, when by reason of its provisions, the accused was in fact accorded a fair trial, in all respects as if he had pleaded not guilty, instead of being pressed to death or executed for that he had failed to answer or plead at all. Nevertheless, we may not blink the fact that a failure to enter a plea of not guilty, or that which is, as we have seen, tantamount to it, a failure of the record to show that such a plea was entered, has always been, in every jurisdiction (till of late a few are breaking away), reversible error. [Crain v. United States,162 U. S. 625; Bowen v. State, 98 Ala, 83; People v. Gaines, 52 Cal. 479; Ray v. People, 6 Colo. 231; Parkinson v. People, 135 Ill. 401; Johns v. State, 104 Ind. 557; State v. Wilson, 42 Kan. 587; State v. Fontenette, 45 La. Ann. 902; Grigg v. People, 31 Mich. 471; Sartorious v. State,24 Miss. 602; State v. Hopper, 142 Mo. 478; *Page 362 State v. Williams, 117 Mo. 379; State v. Taylor, 111 Mo. 448; State v. Saunders, 53 Mo. 234; State v. Montgomery, 63 Mo. 296 (and some 25 or 30 others); Browning v. State, 54 Neb. 203; State v. Cunningham, 94 N. C. 824; State v. Moore, 30 S. C. 69; Shaw v. State, 17 Tex. App. 225; Stoneham v. Com., 86 Va. 523; Lanphere v. State, 114 Wis. 193; Davis v. State,38 Wis. 487; 12 Cyc. 344; 2 Ency. Pl. Pr. 761-792.] "The plea of not guilty," says Wharton, "contests all of the material averments of the indictment." [Wharton, Crim. Pl. and Pr., 408.] The right of arraignment on a criminal trial may in some cases be waived, but a plea is always essential. [Warren v. State, 13 Tex. App. 348; Ray v. People,6 Colo. 231; Wharton, Crim. Pl. and Pr. 409.] The court cannot at common law supply an issue after verdict where there has been no plea (Long v. People, 102 Ill. 331), notwithstanding the defendant consented to go to trial. [Hoskins v. State, 84 Ill. 87; Gould v. People, 89 Ill. 216; Bowers v. State, 108 Ind. 411; Douglass v. State, 3 Wis. 820; Lacefield v. State, 34 Ark. 275; People v. Gaines, 52 Cal. 480; Bates v. State,12 Tex. App. 139.] And a failure of the record to show a plea is a fatal defect. [Wharton, Crim. Pl. and Pr., 409; Huddleston v. State,14 Tex. App. 73.]
So until lately stood practically all the law, so far as staredecisis could interpret it. Statutes like ours in practically all of the States have stood for years as latent stumblingblocks of bald, naked technicality, cumbering the path of justice and the legal earth, subserving no appreciable present good. What reason can now be urged for retaining as reversible error the nonobservance of a rule which after all but guarantees to defendant, whether he pleads or not, a trial in all respects as if he had pleaded, and when in fact he actually gets the same sort of trial? In this day and age and condition of the law no reason now exists for such a rule, nor has any such existed these *Page 363 thirty-five years, and we would as well cast it into the dust-heap of useless and abandoned technicality.
I am mindful of the intimation by a divided court in the case of Crain v. United States, 162 U. S. 625, that a statute which would utterly deny the necessity of entering a plea or having one entered, and which in effect would in all cases force a defendant to trial without an issue made up to try, might possibly violate the provisions of the Fourteenth Amendment to the Constitution of the United States. But even should such a holding be squarely made by the Supreme Court of the United States (and in the Crain case, Mr. Justice (now Chief Justice) WHITE, Mr. Justice PECKHAM and Mr. Justice BREWER dissented), yet in my view this holding would not prevent the passage of an act by our Legislature to the effect that a going to trial by the accused without the entering of a formal plea of not guilty, or the fact that the record fails to show such a plea, should not after verdict, no objection or exception being thereto timely lodged, constitute reversible error, on the ground that failure to interpose timely objection and the act of announcing ready and proceeding to trial and participating therein, operated as a waiver of the failure to plead. This ought to have been done years ago.
Time after time the conference of judges (R. S. 1909, sec. 3892) has requested the Legislature to pass a law obviating reversal of criminal cases for this senseless, useless and piffling reason. [No. 2 of Recommendations of Conference of Judges to 47th General Assembly.] No attention has been paid to this recommendation. In the light of the construction put upon this section of our statute by a body made up of all of the judges of this State, it will not suffice to say that this section, without legislative action or judicial interpretation, does not mean what it says, nor what this court for ninety years, and nearly every other court in every other jurisdiction, has always said it meant, *Page 364 But I concur with the views of my associates and of the learned Commissioner, that justice ought no longer to be trifled with and defeated for lack of some body to act. However, I do not think that the courts ought to be asked to do all of the reforming, of which much is now confessedly necessary in both civil and criminal practice and procedure, nor have they the power to do so, without assuming authority by an arrogant aggression, which could subject them to impeachment. Technicalities, so-called, and actually such so far as the good subserved by them is concerned, are planted thick in our statute law. In our Constitution even, they lie scattered through each article almost "thick as leaves which strew the brooks at Vallombrosa." Daily odium is heaped upon the courts because they must needs follow the Constitution, when the Constitution itself is fostering and protecting moss-covered technicalities. Many examples of such Constitution-begotten technicalities could be amazingly marshaled here; let two or three suffice: the repetitious, involved and technical verbiage of indictments of all kinds is prescribed and preserved by the organic law (Sec. 22, Art. II, Cons. of 1875); likewise the rule which forbids the State to take depositions in a criminal case (Sec. 22, Art. II, Cons. of 1875); as also the provision arbitrarily prescribing the manner in which indictments and informations shall conclude. [Sec. 38, Art. I, Cons.] Many more might be added to this list. Abortive and defective efforts of the prosecuting officers to follow these provisions of our Constitution have served to reverse the cases of more than a hundred men, all guilty, presumably, for the juries so found them to be (State v. Murphy,141 Mo. 267; State v. Plant, 209 Mo. 307; State v. Wade, 147 Mo. 73; State v. Burks, 159 Mo. 568, and others too numerous to mention); other hundreds have gone unwhipt of justice because the witnesses against them stepped across the State line and stayed there. [State v. Berkley,92 Mo. 41; State v. Dyke, *Page 365 96 Mo. 298.] I am not criticizing these provisions, nor am I passing upon their wisdom or unwisdom. The people gave them to us, and it is for the people alone to take them away. I am stating only that which has happened many score of times by reason of them, and saying that if in the last analysis, they do now more good than harm it is utterly impossible for the ordinary finite mind to perceive wherein it lies. It will not entirely answer to say that a thing which is prescribed by a Constitution ordained and adopted by the sovereign people, can never be in any legalsense a technicality. This, for the reason that since it is solemnly ordained by the people themselves in furtherance of that likewise solemnly ordained prescription of the basic reasons for the existence of government at all, viz.:" That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security it fails of its chief design" (Sec. 4, Art. II, Cons. of Mo. 1875), therefore it is a right rule of action, and must be fairly followed and interpreted with honesty and horse-sense. But we would be utterly blind and deaf to things which all other men know if we were to lay the unction to our souls that reversals of the cases of guilty men for that, rights and safeguards solemnly granted to the citizen by the sovereign people in the Constitution have been ruthlessly violated, are always today condoned, excused or even accepted tolerantly by the public. Similarly, many ancient, outgrown and useless statutes, like the one here vexing us, cumber the books, and in spite of us make reversals necessary, which would often otherwise be unnecessary. I cannot square it with my duty to override wilfully a people-made Constitution, nor unless overpowering reason urge, a statute made by the representatives *Page 366 of the people freshly accredited by their suffrages, simply because to my mind and in my opinion, the law is wrong or the Constitution is ill-advised and unfitted to the uses of these days. What assurance have I that it may not be my mistake; I, it may be, am suffering from a jaundiced view, or from strabismus of the mental machinery, and the Constitution and the law may be right? So much is said, as tending, if possible, to show that the responsibility is divided, as Gaul was said to have been, into three parts, and that the people and the Legislature and the courts should, in fairness each toward the other, assume their just proportion of the burden and the odium of permitting justice to be delayed or denied by reason of the operation of any ancient, worn-out technicality, the very reason for whose origin and existence has been lost in the dim mazes of antiquity.
When however, legislative action has been requested as has been done upon the statute before us, and none such looking to relief has been afforded, and when other courts outraged by the existence of a like useless statute, are ridding themselves of it by judicial construction, we ought not to lag behind. We ought to assume, as the majority opinion does, that mayhap the Statute of Jeofails applies, and that light has descended upon us only after thirty-five years. This precise point in a like case, upon a similar statute apparently, was lately before the Supreme Court of Wisconsin in the case of Hack v. State, 141 Wis. 346. Touching it that court said:
"The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel, and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. *Page 367 Under such circumstances it was well, perhaps, that such a rule should exist, and well that every technical requirement should be insisted on, when the state demanded its meed of blood. Such a course raised up a sort of a barrier which the court could utilize when a prosecution was successful which ought not to have been successful, or when a man without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story, had been unjustly convicted, but yet under the ordinary principles of waiver, as applied to civil matters, had waived every defect in the proceedings.
"Thanks to the humane policy of the modern criminal law we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defense. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the State, and may have his witnesses summoned and paid for by the State; not infrequently he is thus furnished counsel more able than the attorney for the State. In short, the modern law has taken as great pains to surround the accused person with the means to effectively make his defense as the ancient law took pains to prevent that consummation. The reasons which in some sense justfiied the former attitude of the courts have therefore disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principle based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misdemeanor, who comes into court with his attorney, fully advised of all his rights and furnished with every means of making his defense, should not be held to waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking for it.
"Surely the defendant should have every one of his constitutional rights and privileges, but should he *Page 368 be permitted to juggle with them? Should he be silent when he ought to ask for some minor right which the court would at once give him, and then when he has had his trial, and the issue has gone against him, should he be heard to say there is error because he was not given his right? Should he be allowed to play his game with loaded dice? Should Justice travel with leaden heel because the defendant has secretly stored up some technical error not affecting the merits, and thus secured a new trial because forsooth he can waive nothing? We think not. We think that sound reason, good sense, and the interests of the public demand that the ancient strict rule, framed originally for other conditions, be laid aside, at least so far as all prosecutions for offenses less than capital are concerned."
The New York courts have upon the point held like views. For it was said in People v. Osterhout, 34 Hun, 260:
"The defect is merely technical, affecting no rights whatever. . . . Nor may this court on appeal regard technical errors or defects or exceptions which do not affect substantial rights." [Referring to a statute from which ours was copied.] "If this section is to have any meaning at all it applies exactly to a case like the present. . . . Every one who knows anything of a criminal trial must see that the omission did the defendant no harm. . . . Where the prisoner appears with his own counsel, the omission formally to arraign and ask for a plea is immaterial to his rights and may be deemed to be waived."
And in the case of People v. Bradner, 107 N. Y. 1, it was said:
"A formal plea of not guilty is not necessary to put the defendant on trial. Further, in effect, going to trial as if an issue were framed, all participants acting as if all formalities had been complied with, is equivalent to arraignment and plea. It would be sacrificing substance to form not to give effect to the *Page 369 transaction according to the plain understanding of the court and the parties."
The Supreme Court of Washington likewise took this view, as witness this excerpt from State v. Straub, 16 Wash. 111, and while conceding cheerfully the common-law rule, which confessedly the opinion abrogated, it was said:
"We think, under the system adopted by the Code in this State, that such an omission is purely technical, that it does not affect any of the substantial rights of the defendant, and that, if otherwise properly convicted, the judgment should not be reversed. Indeed, this is the holding of many modern courts under statutes similar to ours."
The Supreme Court of Michigan in a very late felony case, upon the same point reached the same conclusion upon the identical facts here and held that, upon a trial in such a case where defendant is neither arraigned nor pleads not guilty, nor has any plea entered of record for him, but where his counsel announces for him that he is ready for trial, and later files an application for a continuance denying guilt, and objects to a continuance by the State, and urges upon the jury in argument that defendant is not guilty, all without objection, defendant thereby waived the right to urge reversible error as arising from lack of arraignment and plea. The Michigan court, in the course of its able opinion, quotes with approval the view of Justice MARSHALL, of the Supreme Court of Wisconsin, concurring in Hack v. State, supra, thus:
"While in my judgment the decision here is conformable to and required by the law of 1856 and numerous decisions that rights, even of a fundamental character, may be waived in a criminal, as well as in a civil case, overruling the principle of Davis v. State, 38 Wis. 487, I claim for the court inherent power and duty to reach the same result independently of legislative *Page 370 assistance. The doctrine of Davis v. State as to arraignment and plea not being waivable, is wholly of judicial creation. Not only, as said by the Chief Justice, have the basic reasons which suggested such doctrine as a guard against injustice long since ceased to exist, but just as weighty reasons, prior to the legislation of 1856, called for its abrogation as a useless interference with the due administration of justice. The inherent power of the court, which originated the doctrine to satisfy seeming requirements of the social state which no longer exist, may properly be used to lay it aside as a legal curiosity, appreciable only by a knowledge of its antecedents, and inadaptable for any beneficial purpose in our modern life."
The logic and unanswerable reasons for the view which I take are so clearly and ably set out in the dissenting opinion of Mr. Justice PECKHAM, in Crain v. United States, supra, at page 648, that I quote:
"Suppose, however, the defendant through mere inadvertence had not been formally arraigned at the bar, and had not in terms pleaded, but that he was placed on trial without objection on his part, and both sides treated the case as if he had been arraigned and pleaded not guilty, could it be plausibly contended that, nevertheless, a fatal error had been committed by a neglect of this form, and that a judgment of conviction must on that account be reversed? Is it possible that for the first time a defendant can in this court successfully raise this formal objection, and under circumstances showing a waiver of the rule, and yet obtain a reversal of the judgment of that ground alone? To my mind the mere statement of these questions furnishes their conclusive answer. Some cases may hold the necessity of a formal plea and that the conduct of a defendant in going to trial without any objection, and as if a plea of not guilty had been entered, did not waive the necessity of such a plea. Those *Page 371 cases are not based on principles which, in my judgment, ought now to be followed.
"Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which under the circumstances would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court."
The very same point has been up for ruling or discussion in many other States and, while I concede the condition of the common law as shown by excerpts from, or citations of, cases from many other jurisdictions and from text-books and other authorities which I cite (cf. 12 Cyc. 344; 1 Chitty's Crim. Law, sec. 419; Wharton, Crim, Pl. and Pr., 409; 2 Ency. Pl. Pr., 761 et seq., and cases cited from other States, supra) there are latterly growing up a legion of courts, outside of those cases from which I quote, where the point has been held a cumbering, bald technicality which is waived by going to trial without objection. [Molihan v. State, 30 Ind. 266; State v. Hayes, 67 Iowa, 27; Fernandez v. State, 7 Ala. 511; Hudson v. State, 117 Ga. 704; State v. Thompson,95 Iowa, 464; Bateman v. State, 64 Miss. 233; People v. Tower, 17 N. Y. Supp. 395; State v. Greene, 66 Iowa, 11; Avery v. People,11 Ill. App. 332; see, also, cases cited by our learned Commissioner.]
For these reasons then, in addition to those so learnedly suggested in the opinion of ROY, C., I concur. But I think, as I said in the beginning, that our views *Page 372 on this question should be so broadly inclusive as to comprehend more than this instant misdemeanor case, wherein by accident largely, counsel for defendant happened to say by way of argument to the jury, that defendants were not guilty. Such accidental statement by way of waiver and urged here as constituting waiver may not occur again in a case before us in a hundred years. I am thoroughly convinced, that outside of such argument as may be urged in favor of the statute under discussion, merely because it is a statute and because the Legislature has neglected to amend it, after its usefulness has been shown and its amendment suggested by the conference of judges, no right of defendant is protected and no purpose is subserved by it when defendant, in any case (except a trial for a capital offense), is tried in every respect as if he had entered a plea of not guilty, or had such plea entered for him. I believe we should flatly hold that unless objection is made by the defendant for failure of the record to show a plea before the trial jury is sworn, his announcement of being ready for trial, his participating therein in person in a misdemeanor case, or in person and by counsel in any trial where conviction follows for a felony less than capital, ought to be taken and deemed by this court after verdict as a waiver of both arraignment and entry of a plea of not guilty, and that we should no longer hold that to be reversible error, which our common-sense tells us is not hurtful error, and that the case of State v. Andrews, 27 Mo. 267, and all other cases which have followed it in announcing a rule in conflict with the views herein, should be overruled and no longer followed. Walker, P. J. and Brown, J., concur in these views.
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