The plaintiff in error was tried in the district court for Gage county and found guilty of burglary in breaking into a car belonging to the Rock Island Railroad Company and in stealing therefrom ten sacks of sugar of the value of $61, the property of Eugene S. Stevens. The petition in error alleges that section 448 of the criminal code was disregarded in the trial because the accused ivas not arraigned. That section reads: “The accused shall be arraigned by reading to him the indictment, unless, in cases of indictments for misdemeanors, the reading shall be waived by the accused by the nature of the charge being made known to him, and he shall then be asked whether he is guilty or not guilty of the offense charged.” Attention is also called to that part of section 451 of the criminal code which provides: “If upon the arraignment the accused offer no plea in bar, he shall plead 'guilty7 or 'not guilty ;7 but if he plead evasively,, or stand mute, he shall be taken to have pleaded 'not guilty.7 77 This court in Barker v. State, 54 Neb. 53, held that section 448 of tbe *520criminal code must be complied with and conld not be-disregarded.
In Browning v. State, 54 Neb. 203, the former opinion is followed by an exhaustive opinion containing- many authorities. The opinions referred to were delivered by Judge Nor val. Since the delivery of these opinions, the legislature has been in session several times and has not repealed the sections in question. If it had desired to repeal the same, it would no doubt have done so. It is argued with a considerable degree of force in the brief of the attorney general that the defendant could waive the statute, and that he has in effect done so by neglecting to raise the question before his tria.1 and conviction. The sections quoted seem to place the burden upon the court to make a record and show that the provisions of section 448 have not been disregarded. In the face of these sections of the criminal code, we are without power to declare the trial a valid and proper trial, although we may feel that no actual injury has been done to the defendant.
In Barker v. State, supra, it is said in the fourth paragraph of the syllabus: “A conviction under an amended information charging a felony will not be sustained where the record does not affirmatively disclose that the accused was arraigned, pid that he pleaded before trial.”
Tn Browning v. State, supra, it is said in the third paragraph of the syllabus: “When it is discovered during the trial on the charge of a felony that there has been no arraignment and plea, the court should not proceed with the trial without arraigning the accused, entering his plea, and causing the jury to be resworn and the witnesses to be re-examined.” In the body of the opinion in the Browning case it is said: “This court held, in Barker v. State, 54 Neb. 53, that it was indispensable to the validity of a conviction of a felony that the record affirmatively show- the accused, before trial, was arraigned, and that he pleaded to the information or indictment, or, in case he stands mute or refuses to plead, that the court enter the plea of not guilty for him. A re-examination of the *521question satisfies us.that the conclusion then reached is sound and should be adhered to.” The court then cites a long list of cases, after which it remarks: “There are a few decisions which hold that an arraignment and plea may be waived by the prisoner in all except capital cases, but such decisions, for the most part, were rendered under statutes different from ours.” It is further said: “The object of requiring an arraignment and plea in a criminal case is to inform the accused of the nature of the charge against him, and to make up an issue for trial. Until a plea of not guilty is entered, there is no issue of fact for the jury to determine. * * * There can be no valid trial for a felony without an arraignment and plea before the trial is entered upon.”
In Clark, Criminal Procedure, sec. 128, it is said: “In the arraignment the defendant must be called to the bar of the court, the indictment must be distinctly read to him, and he must be asked Avkether he pleads guilty or not guilty. If he stands mute, and obstinately refuses to answer, a plea of not guilty is entered for him by the court. * * * Not only is the arraignment necessary, but the plea is equally so, for without a plea there can be no issue to try.”
In 2 Bishop, New Criminal Procedure (2d ed.) sec. 733, subd. 4, it is said: “Without plea, there can be no Adalid trial. It is so even though the defendant went voluntarily and without objection to trial, knowing there was no plea. It must be before the jury are SAVorn; afterward, the plea is too late.”
If we apply the rule as above laid down to the instant case, it must be said that, as the defendant did not have the complaint read to him and did not plead to it, therefore no issue was ever tried.
In Bowen v. State, 98 Ala. 83, the court said: “The record nowhere sIioavs that the defendant pleaded to the indictment, or that the court interposed the plea of ‘not guilty’ for him, or that issue was joined on plea.” The judgment was reversed.
*522In People v. Corbett, 28 Cal. 328, it is said: “A verdict, in a criminal case, where there has been neither arraignment nor- plea, is a nullity, and no valid judgment can be rendered thereon.”
In Bowen v. State, 108 Ind. 411, the court said: “Where the record in a criminal cause 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, and that the proceeding was consequently erroneous, to say the least.”
In Parkinson v. People, 135 Ill. 401, it is said in the first paragraph of the syllabus: “The arraignment and plea of the defendant * * * are essential to the forming of an issue, without which there is nothing to try, and nothing on which to base a verdict or judgment.”
In State v. Ford, 30 La. Ann. 311, it is said in the syllabus “that a plea on his behalf should be filed to the indictment found against the accused, that the failure to file such a plea will vitiate the proceedings, and justify the setting aside of the verdict.”
In Jefferson v. State, 24 Tex. App. 535, it is said in the body of the opinion : “It is nowhere made to appear that the defendant pleaded to the charge in the information, nor that a plea to the same was entered for him. Without a plea there was no issue to try.”
In State v. Vanhook, 88 Mo. 105, it was said of the failure to arraign the defendant: “This is a fatal error, and it is for the legislature, and not for this court, to change the law on the subject.”
In Wilson v. State, 42 Miss. 639, the court said: “The defendant cannot waive his arraignment, nor can he plead by attorney. The plea by attorney is no plea.”
In Crain v. United States, 162 U. S. 625, it was 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.”
So far as we have made an examination of the cases cited by the attorney general, there is a difference in the *523proceedings or a difference in llie statute, so that the cases are not in point.
Section 448 of the criminal code is not applicable to indictments and informations for misdemeanors. The section itself specifically provides that the arraignment may be waived in such cases. That the legislature intended that there should be no waiver in case of indictments and informations charging felonies is apparent from the language of the section. If we disregard the expressed will of the legislature, we substitute the views of the court in place of the legislative enactment. This we decline to do.
In the face of the uniform holding of this court, supported as it is by the great Aveight of authority, we do not feel like overruling the decisions of the court contained in Barker v. State and Browning v. State, supra. The judgment of the district court is reversed and the case remanded.
Reversed.