The record fails to show that the accused was arraigned, or that he pleaded to the indictment. In the absence of anything in the transcript to show either arraignment or plea, the judgment will be reversed. Mr. Wharton says : “ 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 Whart. Cr. Law, sec. 531.
Paschal’s Digest, Article 2981, Code of Criminal Procedure, provides that “judgment shall in no case be given against the defendant when his motion, exception, or plea is overruled, but he shall, in all criminal cases, be allowed to plead not guilty. If he refuses to plead, it shall be considered as if the plea were offered, and be noted accordingly.”
This is not the first time that this question has been before this court. See the opinion of the court in the case of Early v. The State, 1 Texas Ct. of App. 248; also the case of Smith v. The State, 1 Texas Ct. of App. 408; and also the case of Lister v. The State, 1 Texas Ct. of App. 739.
The judgment is reversed and the cause remanded.
Reversed and remanded.