Tlie opinion of the court was delivered by
Fenner, J.An information for burglary having been filed against the defendant, and duly served upon him, lie voluntarily appeared, *544through his counsel and before arraignment, and filed a plea of autrefois acquit of which he prayed trial by jury. After answer by the State, the court refused the trial by jury, to which exception was taken. The plea was then taken up, tried on evidence offered, and overruled by the court, to which ruling another exception was reserved.
The defendant was then, for the first time, duly arraigned, pleaded not guilty, and was regularly tried and convicted.
On this branch of the case, defendant assigns several errors :
1. That the minutes do not show that the prisoner was present in court when the plea of autrefois acquit was filed.
The law undoubtedly requires that the defendant must be present at the arraignment, and that, as a general rule, he must plead personally, and not by attorney.
If this were a case where the defendant had not been present at the arraingnment and had not pleaded personally to the information, but had pleaded only by attorney, his claim to relief might have merit. But, as we have shown, he was regularly arraigned and did personally plead.
If, before arraignment and before he was called upon to plead, he chose voluntarily to inject into the record a plea in bar by his attorneys, that is his own act, of which he cannot complain. He was not bound nor called on to plead. His pleading and the mode thereof were of his own choice. He cannot complain that the judge did not refuse to receive his plea thus tendered, which he made his own, because the minutes show he was personally present when the plea was tried and overruled.
2. That the minutes do notishow the presence of the prisoner when the question of trial by jury was tried and overruled. The record does not show that there was any separate trial of this question. So far as appears, there was but one hearing and trial, at which the minutes do show that the prisoner was present.
3. That the court erred in overruling the prayer for trial by jury; and
4. That the court erred in overruling the plea of autrefois acquit.
These may bo considered together.
The court overruled the plea on the ground that it appeared on the face of the record that the former information was fatally defective, because it charged no crime known to the laws of Louisiana; in addition to which it was shown that, on the trial, the judge had, at defendant’s own request, so charged the jury, and instructed them they were, on that ground, bound to acquit.
This rendered the plea demurrable and authorized the judge to determine it without recourse to a jury. State vs. Shaw, 5 Ann. 342.
*545We tliiuk it Joes not lie in defendant’s month, under such circumstances, to deny that the former information was fatally defective. The law is well settled -that “ when the indictment is in form so defective, that the defendant, if found guilty, will be entitled to have any judgm ent entered therein against him reversed for error, he is not in j eopardy. ; and should he be acquitted, he will be liable to be tried on a new and valid indictment.” 1 Bish. Cr. L., Sec. 1021.
Another exception is found in the record to the admission of a confession made by the prisoner objected to on the ground that it was not free and voluntary.
The bill discloses nothing impairing the free and voluntary quality of the confession. Neither throat nor promise was made, but it was given on the simple advice of the officer that “he had better tell the truth.” .
Judgment affirmed.