Dissenting. — This court, speaking through Budge, C. J., in State v. Scheminisky, 31 Ida. 504, 174 Pac. 611, said:
“2. When the statute imposes a higher penalty upon a second conviction, it makes the prior conviction of a similar offense a part of the description and character of the offense intended to be punished, and the fact of such prior conviction must be charged and proved.
“3. An indictment or information charging a defendant with being ‘a persistent violator’ under sec. 19, chap. 11, 1915 Session Laws, must contain a specific averment of the previous conviction, that act constituting an essential element of the defense defined by this section.”
If this is a correct statement of law applicable to prosecutions for this class of crimes, then a felony charge under this statute makes the record of the former conviction “an essential element,” and it is “a part of the description and character” of the felony charge.
The information in this case charges that the defendant, Henry Poynter, “was on March 9th, 1917, in the District Court of the 5th Judicial District of the State of Idaho, in and for Bannock County, convicted upon a plea of guilty of the crime of transporting intoxicating liquors in Bannock County .... and that judgment was pronounced thereon on the 9th day of March, 1917, which judgment has never been reversed, annulled or set aside.”
In order to sustain this averment in the information, the state offered a record of the same court, of what it claimed was a part of the proceedings of the former case. This record, inter alia, recites that the defendant in the case at bar appeared by his counsel and demurred to the information; that the demurrer was overruled; that said counsel on behalf of defendant thereafter entered a plea of not guilty to the charge on February 21, 1917; that on February 26th following said counsel again appeared in said court and withdrew the former plea of not guilty, and entered a plea of guilty on behalf of the defendant; and that on March *5239th thereafter a judgment of conviction was entered by the court on the said plea of guilty.
In the trial of the case at bar, the state attempted to identify the defendant in the former ease as one and the same person as the defendant on trial, and called the clerk of the court, C. W. Pomeroy, who, in response to a question as to whether the judgment of conviction in the former case was a judgment of conviction against the defendant then on trial, answered: “A. I can’t say, for the reason that Mr. Poynter didn’t appear. He appeared through his attorney, Mr. Smith.”
The state then called the sheriff, who testified to substantially the same state of facts. It is therefore clear from the record in the former case that the first time defendant personally appeared before the court was at chambers, when the judgment of conviction was entered upon the plea of guilty which had been substituted by an attorney for defendant’s former plea of not guilty, in his absence, and so far as the record shows, without his knowledge.
A plea of guilty in criminal causes, if accepted and entered by the court, is equivalent to a verdict of guilty after a trial upon a plea of not guilty, and if such plea has been lawfully made, it authorizes the imposition of a judgment of conviction thereon, in the same manner and to the same extent as if the defendant had been regularly tried and found guilty by the verdict of a jury. (8 R. C. L., p. 116.) But a judgment of conviction cannot be entered upon a void plea of guilty, any more than could be done upon a void verdict, or where there was in fact no verdict at all.
C. S., sec. 8879, defines the four kinds of pleas in a criminal cause: (1) Guilty, (2) not guilty, (3) former judgment of conviction or acquittal, (4) once in jeopardy.
C. S., sec. 8880, requires every plea to be oral and to be entered upon the minutes of the court, and if the defendant pleads guilty, it shall be in substantially the following form: “The defendant pleads that he is guilty of the offense charged.”
*524C. S., see. 8881, provides that: “A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment against a corporation, in which case it may be put in by counsel. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted.”
These two sections are identical with the corresponding sections of the California Penal Code, which had been construed by the courts of that state long prior to their enactment in this state. In People v. Thompson, 4 Cal. 238, that court said:
“These two sections must be construed together. The 299th section, taken by itself, would seem to be a reaffirmance of the common law which required the prisoner to plead in person; the latter section, however, alters this principle, by rendering it unnecessary for the prisoner to be present and plead, except in case ivhere he pleads guilty. No inconvenience can result from this construction, or any possible harm to the rights of the prisoner, while the sense of the statute is preserved. ‘The plea of not guilty is a denial of every allegation in the indictment.’
“While the law will not allow an attorney or counsel to admit away the life or liberty of a party, there can be no danger in permitting him to plead to the whole charge, and put the state to the proof of the offense.”
This provision of our statute, which requires that before there can be a conviction for crime there must be a plea to the indictment or information — that is, that there must be an issue presented — is an age-old requirement of the common law, and has been frequently held by the United States supreme court to be an essential requisite to a compliance with the “due process of law” clause of the federal constitution. Prior to the change made in the criminal procedure by C. S., sec. 8881, a defendant could not plead either guilty or not guilty by counsel, but the legislature, which is vested with power by the constitution to change the law within the limits of that instrument, has modified the pro*525cedure so that counsel' may now enter a plea in certain cases, but it expressly prohibits counsel from entering a plea of guilty in any case, possibly for the reason suggested in People v. Thompson, supra, that counsel should never be permitted to admit away the life or liberty of the subject.
The plea upon which the former judgment of conviction, was had having been entered by an attorney in the absence of the defendant, it was in violation of the plain terms of C. S., see. 8881, and was a nullity as a plea. If this judgment of conviction, as was held in State v. Scheminisky, supra, is a part of the description and character of the crime here charged, and is one of the essential elements necessary to be charged and proved before the defendant can be convicted of a felony in case at bar, the record here does not sustain a conviction for felony. In the former case, the attorney being by statute prohibited from entering a plea of guilty for defendant in his absence, no issue was tendered in that case upon which the judgment of conviction could rest, and the same is invalid in so far as it is relied upon to constitute one of the elements of the felony charge in this case.
In Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. ed. 1097, Justice Harlan, delivering the opinion of the court which was concurred in by all of the justices except Peckham, said:
“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 recital in some order that the jury was sworn to try the issue joined.....
“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 entered for him, before his trial can rightfully proceed.....”
The opinion reviews the authorities at length, all of which hold that without a plea there is nothing to try, and a party *526convicted on a verdict under such conditions cannot lawfully be sentenced. Among the authorities so holding are the following: In Grigg v. People, 31 Mich. 471, Chief Justice Graves, Justices Cooley and Campbell concurring, said: “An arraignment and plea being imperatively required, a recital of them, if they were taken, was a necessary ingredient of the record.” In Douglass v. State, 3 Wis. 820, 821, that court said: “A plea and issue is absolutely essential, nor can we supply an issue corresponding to, the verdict when the record is entirely silent on the subject.” In People v. Corbett, 28 Cal. 328, that court said: “A verdict in a criminal case where there has been neither an arraignment or a plea is a nullity, and no valid judgment can be entered thereon.” Sartorious v. State, 24 Miss. 602, holds that before a party can be put upon his trial he must plead to the indictment. In Bowen v. State, 108 Ind. 411, 9 N. E. 378, the court says that it can no longer be recognized as subject to controversy that where the record in a criminal case fails to disclose affirmatively that a plea to the indictment was entered, either by or for the defendant, such record on its face shows a mistrial. In Aylesworth v. People, 65 Ill. 301, which was an indictment for a misdemeanor, the court says: “The record should also show that a plea of not guilty was entered. Without it there is nothing for the jury to try.” In Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433, Johnson v. People, 22 Ill. 314, and Yundt v. People, 65 Ill. 372, it was held that without an issue formed, that is, without a plea, there would be nothing to try, and a party convicted could not properly be sentenced. In State v. Chenier, 32 La. Ann. 103, the accused was arraigned and his plea entered after the trial had commenced, and the court said: “We cannot sanction such a departure from the ancient landmarks in criminal procedure.” In Ray v. People, 6 Colo. 231, the defendant not having pleaded to the indictment, the court held that there was nothing to try; if the record failed to show an arraignment and plea prior to trial, the proceedings were a nullity. In State v. *527Vanhook, 88 Mo. 105, that court held that the failure of the record to show a plea was fatal, and it was for the legislature, not the court, to change the law on the subject. To the same effect are State v. Wilson, 42 Kan. 587, 22 Pac. 622; Jefferson v. State, 24 Tex. App. 535, 7 S. W. 244; Hicks v. State, 111 Ind. 402, 12 N. E. 522; State v. Agee, 68 Mo. 264; State v. Saunders, 53 Mo. 234; 1 Bishop, Crim. Proc., 3d ed., secs. 801 and 733; 1 Wharton, Am. Crim. Law, sec. 530;
In Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. ed. 262, the court held: “The public has an interest in the life and liberty of an accused person. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody, to object to unauthorized methods.”
In 8 R. C. L., at page 109, it is said: “In every criminal case there must be a plea by the defendant, or the equivalent of one. The purpose of a plea is of course to make an issue. Without an issue there is nothing to be tried, and nothing on which the verdict of a jury or judgment and sentence of a court can properly be predicated.” Citing many authorities in support of this proposition.
In State v. Walton, 50 Or. 142, 91 Pac. 490, 13 L. R. A., N. S., 811, it is said: “Absence of an opportunity to plead, which by statute is made a part of the arraignment in a prosecution for a felony, the plea also being made essential, is fatal to a conviction, although the accused manifested no desire to enter a plea, and there is nothing to show that he was in any way injured by not being given an opportunity to do so.”
This case, and also an extensive note found in the L. R. A., N. S., reviews all of the later authorities on this question, and it would seem that no authority can be found holding that a plea of guilty may be dispensed with or entered by *528counsel in the absence of a defendant, where there is a statute similar to the Idaho provision, or where the common-law practice has not been modified by statute.
The several majority opinions reach the conclusion arrived at from widely different points of view, which suggests that it is always difficult for a court to give a satisfactory reason why a perfectly plain statute, which has been in force for more than half a century in this and adjoining states, the validity of which is not questioned, should not be followed by the courts until repealed by the legislature.
The majority opinion, which states the law of the case, holds that this court may assume that the defendant intended to waive, and did waive, the right which this statute gives him to be present in court and plead in person before he can be lawfully convicted of the crime charged, but I think this assumption is not supported either by authority or sound reason, and that courts are not warranted in indulging in assumptions of this character, where it in effect nullifies the plain provisions of a statute.
I have examined the numerous cases cited in another of the concurring opinions, except as to those that are not found in the state library. Some of these cases hold that where a defendant is tried upon the assumption that he has entered a plea of not guilty, although the record fails to disclose' that such a plea has been entered, and where none of his rights appear to have been prejudiced by this state of the record, it will be presumed that such a plea was in fact entered. Others hold that where the defendant’s counsel has entered a plea of not guilty, and the defendant was subsequently convicted upon the issue thus presented, that after conviction it will be presumed that the entry of the plea was authorized. But none of them hold, and I have not been able to find a case where it has been held, that a defendant may be arraigned, a plea of not guilty entered, and such plea withdrawn by counsel and a plea of guilty entered, all in defendant’s absence, as I think the record conclusively shows was done in this case, and the- judgment of conviction on such record upheld.
*529The third majority opinion announces what seems to me to be a still more radical departure from what has generally been held to be the settled rules of criminal procedure, to the effect that if a judgment of conviction for crime is regular upon its face and the court had jurisdiction of the person and subject matter, such judgment is conclusive, and no further inquiry may be had with regard to whether the intermediate proceedings leading up to the conviction had been taken. I think the authorities above cited are a sufficient answer to that contention, but in addition to them attention is directed to the holdings of the United States supreme court in the celebrated case of Frank v. Mangum, 237 U. S. 309, 35 Sup. Ct. 582, 59 L. ed. 969. While the majority opinion in that case holds that the facts stated in the petition for a writ of habeas corpus were not sufficient to warrant that court in interfering with the judgment of the state court, both opinions are clear to the effect that a judgment of conviction is never conclusive unless. the essential procedure necessary to constitute due process of law is complied with. Justice Pitney, speaking for the majority, states: “It results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him.”
Justice Holmes, with whom Justice Hughes concurs, states the same proposition as follows: “The argument for the appellee in substance is that the trial was in a court of competent jurisdiction, and that it retains jurisdiction, although, in fact, it may be dominated by a mob, and that the rulings of the state court as to the fact of such domination cannot be reviewed.....When such a case is presented, it cannot be said, in our view, that the state court decision makes the matter res judicata.....The law cuts through all *530forms, and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved, opens the inquiry whether they have been more than an empty shell.”
(March 27, 1922.)I think it would be very unfortunate for this court to hold that it was powerless to go behind and beyond the mere form of a judgment of conviction in one of the inferior courts, 6r that it was impotent and helpless to consider the validity of a judgment of conviction for a crime because the court rendering such judgment had jurisdiction of the person and subject matter, and I do not understand that the majority opinion so holds.
Neither can I agree with the majority opinion which, by indulging in the various presumptions and assumptions referred to, in effect nullifies the provisions of C. S., sec.’8881, which provide that “a plea of guilty can be entered by the defendant himself only in open court.” If so pronounced a change is to be made in our criminal procedure, it should be done by the legislature and not by the courts.
The judgment of the court below should be limited to the maximum fine and imprisonment provided for misdemeanors of this class, the former conviction relied upon as an essential element of the offense charged in this case to raise it to the grade of a felony not having been established.