The defendant was indicted at the October' •:term, 1889, of the district court of Pinal County for the crime of an aggravated assault. At the same term defendant was tried under said indictment, and convicted of an assault. Prom the judgment entered thereon, and the order overruling his motion for a new trial defendant appeals.
The record in this case fails to show that any plea was ever made by the defendant or entered by the court. It is suggested by the attorney-general that, in consenting to go to trial, and in remaining silent when the clerk in the usual form stated to the jury that the defendant pleaded “Not ■guilty” to the indictment, the defendant made the plea as thus stated by the clerk his own. To this it is sufficient to say that the statutory opportunity to plead having never been extended to the defendant, he was never under any obligation to plead. No plea having been entered by the defendant, there was no issue for the jury to try, and the verdict of the jury and judgment entered thereon are therefore nullities.
Judgment and order reversed, and cause remanded.
Wright, C. J., and Kibbey, J., concur.