Opinion by
An indictment for murder was found against the plaintiff in error at the February term, 1861, of the Third Judicial District, and the case continued to the ensuing August term, at which time the plaintiff in error was put upon his trial, and a verdict of guilty of murder, in the first degree, and that the prisoner suffer death, was rendered, and the prisoner accordingly sentenced to be hung on the 21st of November, 1861. Motions for a new trial and in arrest of judgment having been made, overruled and excepted to, plaintiff presents his writ of error to this court, and for error assigns the following causes:
1. The record of conviction shows that the prisoner was not arraigned, but his arraignment was waived by counsel.
2. The record shows the prisoner did not plead in person, but by counsel.
3. The record shows the proper oath was not administered to the jury.
5. The record and evidence certified, show that three of the trial jurors had not the qualifications required by law, and the Court erred in overruling a motion for a new trial for that reason.
6. The Court erred in overruling a motion for new trial, for the reason stated therein, to wit: “Accident and surprise, and that the verdict is contrary to law.”
7. The record does not show that the prisoner was present in Court when the verdict of guilty was rendered against him, nor on motion for new trial and in arrest of judgment.
8. The record shows that the prisoner is an Indian — that all the witnesses against him, except one, spoke the English language and that their testimony was not interpreted to the prisoner.
9. The indictment is vague, uncertain and insufficient to sustain a conviction: 1. As to the person alleged to have been killed, and his name. 2. As to the time and manner of killing, and the time of the death. 3. As to the allegations generally.
10. The Court erred in overruling the motion in arrest of judgment, for the reasons stated therein, to-wit: 1. No legal authority in the grand jury for the Territory of Washington to inquire into the offense, in this, because the Government of the United States has the sole and exclusive jurisdiction thereof. 2. That the facts as stated in the indictment do not constitute a crime punishable by the laws and in the courts of the Territory, because the crime was committed, if at all, by an Indian belonging to a tribe in amity with the United States, and under their exclusive guardianship, and was committed in the “Indian country.”
11. Other manifest errors.
We will now examine the errors assigned, or as many of them as may be necessary to a disposition of the case. The first and second errors assigned are intimately connected, and
“ Comes now E. A. Chenoweth, Esq., who prosecutes in behalf of the Territory, and the defendant in his own proper person, and by his attorneys, S.. G-arfielde and B. F. Dennison, Esquires. The prisoner upon being asked as to his right name, replied that it was ‘Elick.’ Arraignment of prisoner waived by counsel, and upon being asked as to the charge in the indictment, plead ‘ not guilty’ by counsel.”
Does this record show such an arraignment and plea as the law contemplates, and as is essential to a legal trial? An arraignment consists of three parts: 1. Calling the prisoner to the bar by his name, and requesting him to hold up his hand or do some other act of identification. 2. Reading the indictment to him in such language as to convey to his mind the nature of the charge against him. 3. Demanding of him whether he is guilty or not guilty. 1st Chitty’s Criminal Law, pages 282-4; 1st Roscoe’s Evidence, page 224; 2 Hale, 219; Bouvier’s Law Dictionary, vol. 1, page 120. The prisoner in this case, it seems, in accordance with Sec. 233, pages 149-50, Criminal Practice Act, 1859-60, was asked his right name, and replied that it was Elick. Whether this can be regarded in this case as any part of the .arraignment, is questionable. It may probably be regarded as one step taken in the arraignment, but if so, the record shows that at this time the further arraignment of the prisoner was waived by counsel. Could counsel at this time waive the other essential parts of an arraignment, and enter a plea of not guilty for the prisoner? Our statute (page 149, Criminal Practice Act, 1-859-60), provides certain things on the arraignment of a prisoner. Does not the statute use the word arraignment in the sense it is used at common law, and in the sense 'in which arraignments have long been had at the Courts of the country? There can be no room for controversy on-this view. Articles 5th and 6th, amendments to the Constitution of the United States, -among other fights secured to the accused, declare “the accused shall enjoy the right to be informed of the nature and cause of the accusation” against him; and however the law
The requirement in capital cases that the prisoner should personally plead, rests upon reason and authority equally- con-
These authorities, and numerous others of similar import might be cited, show that the Courts have held that an arraignment and plea in person of the accused, in “capital or otherwise infamous crimes,” to be indispensable to a legal trial and the cases show that in this matter, no question of convenience can be considered.
In the trial of an Indian not familiar .with the English language, the proper method of procedure is to have the accused brought to the bar, the indictment made known to him by a sworn interpreter, and his plea entered by the same means, and as the trial progresses, the evidence made known to him through the interpreter. In any other view of the matter, his personal attendance would be a meaningless ceremony, and the prisoner tried in violation of the laws and Constitution of the land. The Constitution of the United States is co-extensive with the vast empire that has grown up under it, and its provisions securing certain rights to the accused in criminal cases,, are as living and potent on the shores of the Pacific as in the city of its birth. In the matter of these rights it knows no race. It is the rich inheritance of all, and under its provisions in the Courts of the country, on a trial for life, the savage of the forest is the peer of the President.
In the view here taken of the matter, the Courts possess no discretionary power in the matter of an arraignment, and if they did, many large reasons suggest themselves to the Court against any relaxation of a strict arraignment.
A personal arraignment afid plea of the prisoner in this case
Judgment below must be reversed, and a new trial granted to the prisoner.