Concurring Specially. — Appellant was charged with being a persistent violator of the prohibition law. This appeal is from a judgment of conviction.
Appellant makes eleven assignments of error. In his seventh assignment of error, he complains of the action of the trial court in admitting in evidence the record of a former conviction of a violation of the prohibition law, for the reason that the judgment imposed a fine only, and that appellant was not present when a plea of guilty was received by the court and entered therein.
As to the first point, the judgment was not invalid by reason of the fact that the court imposed a fine only, although the statute provides for the imposition of both a fine and imprisonment. (C. S., sec. 2624.)
In Bartholomew v. United States, 177 Fed. 902, at p. 906, 101 C. C. A. 182, the court said: ‘ ‘ One other supposed error is relied upon, which is that the court did not impose a fine in addition to the imprisonment. Counsel point to the letter of the statute which reads that the punishment shall be by fine and imprisonment. We think it clear from the context that ‘and’ was used in the sense of ‘or,’ but if not the defendant is not harmed by the omission and the punishment imposed. An adherence to the letter of the statute, as the defendant claims should have been done, would only add to the penalty and his complaint in that regard is absurd.”
The reasoning of the federal court is applicable to and decisive of the question here raised, and this court should not countenance the complaint of one convicted of crime that *516the court below did not inflict upon him the full measure of punishment which the law justifies.
It appears that in connection with appellant’s former conviction, he appeared upon the arraignment by counsel, and entered a plea of not guilty; that his counsel thereafter withdrew the plea of not guilty and entered a plea of guilty as charged; that appellant was subsequently brought before the court for sentence, whereupon the court duly informed him of the nature of the information found against him, for the crime of transporting intoxicating liquor in a prohibition district, of his arraignment and plea of guilty, and then asked him if he had any legal cause to show why judgment should not be pronounced against him, to which he replied that he had none, whereupon he was sentenced to pay, and paid, a fine.
C. S., see. 8881, provides that: “A' plea of guilty can be put in by the defendant himself only in open court.....”
In a misdemeanor case the defendant may appear upon the arraignment by counsel (C. S., sec. 8848); the arraignment includes the asking of defendant by the court whether he pleads guilty or not guilty to the information (C. S., sec. 8860), and furthermore, the trial may be had, and the judgment pronounced, in the absence of defendant. (C. S., sees. 8905 and 9025.)
The question then arises, where a plea of guilty has been made by defendant’s counsel, in a misdemeanor case, may the defendant waive the provision of the statute that a plea of guilty can be put in by the defendant himself only in open court, and if so," whether the appellant waived such provision in this case.
The California Penal Code contains provisions almost identical with the sections of our statute above cited. (Cal. Pen. Code, secs. 977, 988, 1018 and 1043.) In the case of People v. Ebner, 23 Cal. 158, the California court held that: “In an indictment for a misdemeanor, if the defendant appear and offer to plead by attorney, the court has no power to enter his default and declare his recognizance forfeited.” And in People v. Redinger, 55 Cal. 290, at 298, *51736 Am. Rep. 32, it was said that: “The defendant is arraigned in person and pleads in person, unless in ease of misdemeanor.” Quaere, Is it essential to a valid judgment in a misdemeanor ease that he be arraigned in person and plead in person?
In Sperry v. Commonwealth, 9 Leigh (Va.), 623, 33 Am. Dec. 261, it is held that in prosecutions for felony the accused must be arraigned and plead in person; and in all subsequent proceedings he must appear in person, not by attorney. Defendant’s personal appearance is sometimes rendered unnecessary by statute and a provision made that he may, in misdemeanors, appear by counsel. (People v. Ebner, supra.) But in the absence of the statute, the attorney’s plea in misdemeanors is allowed only in the court’s discretion. (United States v. Leckie, 1 Sprague, 227, Fed. Cas. No. 15,583; People v. Petry, 2 Hilt. (N. Y.) 523; Ex parte Tracy, 25 Vt. 93.)
In People v. Osterhout, 34 Hun (N. Y.), 260, the subject was treated thus: “The defect is merely technical, affecting no substantial right whatever. Nor may this court on appeal regard technical errors or defects or exceptions which do not affect substantial rights. (Referring to a statute similar to our C. S., see. 9084.) If this section is to have any meaning at all it applies exactly to a case like the present. Everyone 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.”
People v. Bradner, 107 N. Y. 1, 13 N. E. 87, is to the same effect: “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 formed, 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 transaction according to the plain understanding of the court and the parties.”
*518In State v. Cassady, 12 Kan. 550, it was conceded that the absence of a plea formally joining issue was fatal to a conviction at common law, but, said the court, “Under our statutes we think a different rule must obtain.”
The case of State v. Straub, 16 Wash. 111, 47 Pac. 227, is significant in that it was a capital case. Acknowledging fully the common-law rule, the court said: “We think, under the system adopted by the code in this state (which is substantially the same as ours), 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.” (State v. Hamshaw, 61 Wash. 390, 112 Pac. 379.)
In Hudson v. State, 117 Ga. 704, 45 S. E. 66, the court said, substantially, a person who goes to trial without a formal plea, but in all respects as if one had been entered, and has had the benefit of the presumption of innocence, cannot thereafter take advantage of what he thus waives. He is not prejudiced in any right.
See, also, Commonwealth v. Neat, 89 Ky. 241, 12 S. W. 256; Kruger v. State, 1 Neb. 365; Johnson v. People, 22 Ill. 314; Payne v. Commonwealth, 16 Ky. L. Rep. 839, 30 S. W. 416; Warren v. State, 19 Ark. 214, 68 Am. Dec. 214; Sweeden v. State, 19 Ark. 205; United States v. Mayo, 1 Curt. C. C. 433, Fed. Cas. No. 15,754.
In Hack v. State, 141 Wis. 346, 124 N. W. 492, 45 L. R. A., N. S., 664, the court said :
“By a singular oversight the defendant was not formally arraigned in the circuit court, and never pleaded to the information. An information in due form was filed; the jury was called and sworn; witnesses for both the state and the defendant were examined and cross-examined; the jury was charged by the court, and rendered its verdict, in all respects as though issue had been formally joined..... He knew perfectly well the offense with which he was *519charged, and was allowed to make his defense just as fully and effectively as if a plea of not guilty had been made, and the question now is whether the inadvertent omission of arraignment and plea, which has not in the least affected any substantial right of the defendant, should be held fatal to the judgment.....The principle now declared is that the right of arraignment and plea will be waived by the defendant by his silence when he ought to demand it, in all cases (except capital cases) where it appears that he is fully informed as to the charge against him, and is not otherwise prejudiced in the trial of the case by the omission of that formality. Other code states so hold.”
In Hobbs v. State, 86 Ark. 360, 111 S. W. 264, the court held that, even without a formal waiver of arraignment, a judgment would not be reversed, “if the record shows that the defendant received every right which he would have received had he been duly arraigned.” (Davidson v. State, 108 Ark. 191, Ann. Cas. 1915B, 436, 158 S. W. 1103.)
Any right to demand an arraignment by one charged with a misdemeanor is waived by participating in the trial in the usual way without objection. (State v. Brock, 61 S. C. 141, 39 S. E. 359.) The right of formal arraignment and plea will be conclusively considered as waived where the defendant goes to trial before the jury on the merits, and fails until after verdict to bring to the attention of the court that he has not been formally called upon to enter a plea to the indictment. (Waller v. State, 2 Ga. App. 636, 58 S. E. 1106.)
In Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. ed. 1097, the authorities are reviewed, and the doctrine contended for by the appellant fully sustained by a divided court. It is held in that ease that arraignment and plea are essential to due process of law, guaranteed to the citizen by the fourteenth amendment. A state could not, therefore, pass a law providing for trial without arraignment or plea, but that does not necessarily affect the question whether a citizen may not effectually waive that right. Thus an ac*520cused person has the absolute constitutional right to a trial by jury. Yet this right may be waived.
In the case of In re Staff, 63 Wis. 285, 53 Am. Rep. 285, 23 N. W. 587, it was held that a statute permitting a defendant to waive a jury trial was not unconstitutional, and Justice Lyon, in the opinion in that case says, section 7, art. 1 of the constitution, “confers many rights upon a person accused of crime, every one of which he may waive without authority of statute, as has often been judicially determined, except the right to be tried by a jury. Such waiver may be express or it may be by failure to make due objection and exception.” He then makes an elaborate enumeration of the many rights conferred which the prisoner may waive, which is worth examination.
In the case of Stoddard v. State, 132 Wis. 520, 13 Ann. Cas. 1211, 112 N. W. 453, it was held that, following the same principle, a defendant might waive his right to be present when the verdict was returned, and did so waive it by absenting himself voluntarily from the room when the jury came in.
In view of the foregoing it cannot well be said that the court, by announcing the rule that a defendant may waive his right to enter a plea of guilty in person in a misdemeanor ease, would change the law, and invade the legislative field in that regard. The legislature has abrogated the doctrine that arraignment and plea in a criminal case cannot be waiyed. Our code provides that no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of any defect or imperfection in matter or form, which does not tend to the prejudice of a substantial right of the defendant upon its merits (C. S., sec. 8835), and that neither a departure from the form or mode prescribed by the code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right *521(C. S., sec. 9191), and we are admonished to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (C. S., see. 9084.)
The power of the court to proceed did not depend upon the personal presence of the accused. Only his right to be present is guaranteed by the constitution and laws, and it is only where steps are taken in the absence of the accused without his consent that his rights are violated.
Conceding as we must, in view of the authorities cited, that many constitutional rights may be waived by the accused, where it appears that he was fully informed as to the charge against him, and of all of the proceedings had, and is not otherwise prejudiced, no substantial right could be denied him by holding that by his acts and conduct he waived the formality of entering his plea of guilty in person, before judgment was pronounced. Mere formal errors and technical objections not affecting any substantial right of the defendant should be disregarded, and we should endeavor, “To adhere to the spirit of the law, which giveth life, rather than to the letter of the law, which killeth.”
In this case, appellant having been informed of the charge against Mm and of his plea of guilty which had been entered thereto by Ms counsel, stated in open court that he had no legal cause to show why judgment should not be pronounced against him. The only inference which can be drawn from this is that defendant’s counsel, in withdrawing the plea of not guilty and entering a plea of guilty, acted under appellant’s instructions, and that appellant acquiesced in and approved of his counsel’s action in that regard, not only by reason of Ms statement in open court, but also by reason of the fact that he paid without question the fine imposed by the court.
An examination of the remaining ten assignments of error discloses no error prejudicial to the defendant. The judgment should be affirmed.