DISSENTING OPINION
FARRINGTON, J.—I am unable to concur in that part of the foregoing opinion which holds that the absence from the record of an entry showing an arraignment and plea is not reversible error.
Section 5165, Revised Statutes 1909, specially provides that there shall be an entry of not guilty either in case of an indictment or information where the defendant fails to plead not guilty. It has been held that there is no trial to be had until an issue is made. [State v. Montgomery, 63 Mo. l. c. 299; State v. Saunders, 53 Mo. l. c. 237.]
The writer is not unmindful of the decisions of this and other courts holding that in drawing indictments in cases of minor offenses the same nicety is not required as in charging felonies (State v. Seiberling, 143 Mo. App. l. c. 321, 127 S. W. 106; State v. Hogle, 156 Mo. App. 367, 137 S. W. 21; State v. Fletcher, 18 Mo. l. c. 427; State v. Nelson, 19 Mo. l. c. 396); nor of the decisions of this and other courts holding that in misdemeanor as well as felony cases a plea of not guilty is not withdrawn by filing a motion to quash the information, and that on the overruling of the motion, a rearraignment is unnecessary (State v. Zimmerman, 139 Mo. App. 304, 123 S. W. 67; State v. Weyland, 142 Mo. App. 55, 125 S. W. *185213; State v. Meagher, 49 Mo. App. l. c. 574, 575); and it is apparent that there is a tendency in these decisions to lower the standard of strictness in certain particulars in misdemeanor cases, as is said in the majority opinion. But this tendency, when it encounters the question of arraignment and plea—even in misdemeanor cases—is, according to my view, met with an array of judicial decisions which entirely deny its application.
Cur Supreme Court has decided some misdemean- or cases, holding that an omission of the record to show an arraignment and plea is fatal. Witness: State v. Koerner, 51 Mo. 174; State v. West, 84 Mo. 440; Meader v. State, 11 Mo. 363; State v. Andrews, 27 Mo. l. c. 268. In State v. Hopper, 142 Mo. l. c. 481, 44 S. W. 272, the Supreme Court said: .“The rule announced by this court is that a judgment of conviction in a criminal case will be reversed, when it appears that the defendant was not arraigned before he was put upon his trial.” (Italics are ours.) The Courts of Appeals have spoken in no uncertain tone. Thus, in State v. Geiger, 45 Mo. App. l. c. 113, it is said: “That it is absolutely essential, even in a prosecution for a misdemeanor, that it should affirmatively appear by the record that there has been an arraignment and plea preceding a trial, has been frequently decided. Judgments have been reversed because the record failed to show this fact, although the defendant went to trial upon the merits. ” And in State v. Mikel, 125 Mo. App. l. c. 289, 102 S. W. 19, a misdemeanor case: “The transcript fails to show that defendant was arraigned or that any plea was made to the indictment. This is a fatal defect. It is just as necessary in misdemeanor , as in felony cases that the record should show these facts affirmatively. Until the defendant is arraigned and enters his plea, there are no issues to try and submit to the jury. Without these things being done, there can be no trial, and, as defendant has not been accorded a legal trial, it is imma*186terial whether he made the point in his motion for new trial or in arrest of judgment. .It may be raised for the first time in the appellate court.” The same principle is forcibly reiterated in State v. Moss, 164 Mo. App. l. c. 381, 144 S. W. 1109. There are other misdemeanor eases to the same effect: State v. Ambrose, 125 Mo. App. 464, 102 S. W. 590; State v. Hubbell, 55 Mo. App. 262; State v. Grassle, 74 Mo. App. l. c. 317.
There had been no arraignment and plea before the jury was sworn in the ease before us; hence, under the authorities cited, there was no issue framed and there could he no trial. This being true, the fact that the record shows that defendants’ attorney, after the jury was sworn and after the information had been read to the jury and the prosecuting attorney’s opening statement made, upon being addressed by the judge, replied: “No statement at this time except we plead not guilty,” is of no consequence whatever; the proceeding. was a nullity, and was not more binding merely because it had for its setting the circuit court room. It should be remembered, also, that there is both arraignment and plea. The arraignment is the call of the defendant to the bar for the purpose of completely identifying him as the person named in the indictment or information and to answer the charge against him. His answer makes the issue. Where the record shows that defendant pleaded “not guilty” to the charge, he is held to have waived formal arraignment. [State v. Weeden, 133 Mo. l. c. 80, 34 S. W. 473.] But here there was neither arraignment nor plea. The Supreme Court has recently used this language—in a felony case, it is true: “The arraignment of a defendant upon a criminal charge is- so indispensable a prerequisite to a legal trial under our law that, as appellant states, it is unnecessary to cite authorities in support of the proposition. ” (Italics are ours.) [State v. Witherspoon, 231 Mo. l. c. 715, 133 S. W. 323.]
*187The arraignment and entry of the plea are said to be a mere formality; but they are nevertheless prescribed by legislative enactment and are upheld by numerous decisions of the appellate courts of this State. That an indictment or information be in writing may be said to be a mere formality; that the requisite number of jurors shall sit, is, in one sense, formal; that the State shall open and close, and that the witnesses shall be sworn, bear the semblance of formality; indeed, if a man is guilty of a crime, the entire trial from arraignment to sentence is made up of one such “formality” after another—nothing is substantial— and to abolish one of these formalities in the trial of one whom we Consider guilty will surely weaken the whole fabric of criminal practice under the Constitution, and that which we have clung to and called the rights of men will be banished forever from the courts. So, where the prosecuting attorney, the jury, the trial judge and the appellate court become convinced that the accused is guilty of the offense charged, any particular formality which was omitted in that particular trial may be said to be waived in that case and yet not prejudice the substantial rights of a guilty defendant. It has always been the policy of the law to devise general rules to cover classes of cases rather than to set up a myriad of rules for application in particular eases. It is my opinion that our courts have gone quite far enough—even in misdemeanor cases—under the present state of the law, and I exercise my privilege to pause. The course proposed is not in keeping with the precepts of our forefathers in the law, precepts that have found place in the fundamental laws and customs of a people who boast of freedom, liberty and private rights; and yet it is sought to invoke a rule against these defendants, which, had they lived and been tried two centuries ago, would have been held to be an unwarranted denial of their liberty. The appellate courts are not called upon nor intrusted with the power to *188determine from the record the guilt or innocence of accused persons, their function being merely to decide whether the trial was had according to the prescribed laws of this State.
The relegation of many of the technical and sharper points in the practice of the law, affecting civil and particularly criminal eases, is felt to be much needed by the bench and bar. The change is taking place in those respects where it is possible for the legal profession to effect a change; and the fact that it is coming about gradually and not convulsively argues strongly for the sound judgment of its members, for one extreme would be attended with as many evils as the other. But for many of the changes resort must be had to the forum in which the judiciary has no vote, which is the legislative branch of our government. It is my opinion that the stability of the law will be better preserved by the courts following faithfully the mandates of the lawmaking power until they are amended or repealed than by refining and explaining away their substance in a particular ease against a guilty defendant. This judgment should be reversed and the cause remanded for a new trial in order that justice may be administered in accordance with the established rules of law.
FARRINGTON, J.—Deeming the decision herein contrary to the previous decisions of the Supreme Court in the cases of State v. Koerner, 51 Mo. 174; State v. West, 84 Mo. 440; Maeder v. State, 11 Mo. 363; State v. Andrews, 27 Mo. l. c. 268; State v. Hopper, 142 Mo. l. c. 481, 44 S. W. 272; State v. Witherspoon, 231 Mo. l. c. 715, 133 S. W. 323; State v. Montgomery, 63 Mo. l. c. 299; and State v. Saunders, 53 Mo. l. c. 237, and contrary to the decisions of the St. Louis Court of Appeals in the cases of State v. Geiger, 45 Mo. App. l. c. 113, and State v. Moss, 164 Mo. App. l. c. 381, 144 S. W. 1109, and of the Kansas City Court *189of Appeals in the case of State v. Mikel, 125 Mo. App. l. c. 289, 102 S. W. 19, I ask that this cause be certified and transferred to the Supreme Court in accordance with section 6 article VI of the Constitution of Missouri as amended in 1884.
PER CURIAM.—One of the judges of this court having of record requested that this cause be certified and transferred to the Supreme Court in accordance with section 6 of article VI of the Constitution of Missouri as amended in 1884, it is accordingly so ordered.