(dissenting).
This author has written specially in State v. King, 400 N.W.2d 878, 881 (S.D.1987) (Henderson, J., dissenting) (guilty plea), and Logan v. Solem, 406 N.W.2d 714, 720 (S.D. 1987) (Henderson, J., dissenting) (nolo contendere plea), concerning Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198 (1970). There, I was concerned with a question of a free and voluntary plea and the rights which must be accorded to a defendant entering a plea. Here, however, we have a different situation: There is no plea but, rather, a full-blown trial.
Perhaps it is not reversible, per se, to hold no arraignment; but it is dangerous procedure and precedent to disregard the state statute requiring arraignment. See SDCL 23A-7-1.1 Shall we journey down *4the road, by way of conclusion, on a further erosion of due process of law? I say no.
Additionally, in South Dakota, we have a constitutional provision which requires that the defendant be furnished with a copy of the nature and cause of the accusation against him. S.D. Const. art. VI, § 7. Have we come to a point in the criminal procedures of this state where we no longer formally arraign and furnish a copy of the Information? One might peruse our words in Honomichl v. State, 333 N.W.2d 797, 798 (S.D.1983): “Without a formal and sufficient indictment or information, a court does not acquire subject matter jurisdiction and thus an accused may not be punished for a crime.” Defendant, from what I can glean of the record, did not see the Indictment. Yet, he was required to proceed to trial. How can a court acquire jurisdiction without a plea? In Honomichl (which is not, conceptually, dissimilar from this case), we expressed: “Subject matter jurisdiction cannot be conferred by agreement, consent, or waiver.” Honomichl, 333 N.W.2d at 799.
Where was the plea in this case? There is no record of it existing — only a statement by the trial judge “that the defendant has pled not guilty to the Indictment....” However, at the defendant’s hearing on his motion in arrest of judgment, the trial judge expressed on the record: “I cannot find where the defendant was arraigned or where he was called upon to plead.” See Post-Trial Motion Hearing Transcript 16 (May 2,1986). There has to be a reason — a necessity — for a formal arraignment and a plea to a major crime; without it, the parties are proceeding in a legal never-never land. An indictment or information must set forth elements of a crime and places the burden on the State to prove the elements; a defendant has the right to defend against these elements knowing precisely what he must meet. Were this not so, he could become ensnared in future accusations on precisely the same set of facts. At the end of the State’s case, a defendant may move for a directed verdict of acquittal on the grounds that the elements pleaded have not been established by the proofs. Defendant and his counsel must have a document before them to know precisely what the State is attempting to prove and be able to refer to it, from time to time, as the trial progresses. It very well could develop, at a later date, that the defendant might be required to assert double jeopardy as a bar to another prosecution.2 At that time, he must be able to point out to the second court, essentially as follows: Here is what I was charged with and here is what I was acquitted of (or convicted of). In essence, he and his counsel must be able to glue onto something and the information or the indictment is the firmament upon which a mental and legal attachment can be made.
There are authorities which disagree with this Court’s decision. Held: Judgment null and void where no plea asked for and no plea of guilty entered, State v. Wester, 204 N.W.2d 109 (N.D.1973). See also State v. Berger, 235 N.W.2d 254 (N.D. 1975). Held: Conviction reversed because no trial could be held “on the merits in a criminal case until the Defendant has pleaded not guilty or this plea has been entered for him by the Court,” Chesnut v. State, 35 Ala.App. 376, 47 So.2d 248, 248 (Ala.Ct.App.1950). See also Strong v. State, 47 Ala.App. 238, 252 So.2d 659 (Ala. Crim.App.1971), reversing a murder in the first degree conviction where defendant sentenced to death because no plea had been entered by the defendant or the court. Held: Conviction reversed where the record on appeal did not disclose the plea of *5the defendant before being placed on trial, even though defendant had demanded a jury trial and indicated they were ready for trial, People v. Snively, 11 Ill.App.2d 579, 138 N.E.2d 112 (1956). Held: Where defense counsel moved to quash information and motion was denied, when defendant was called upon to plea (and did not), and both the State and defendant presented their respective cases to the jury and jury convicted defendant, that conviction would be reversed, Lumsden v. State, 384 S.W.2d 143 (Tex.Crim.App.1964). In reversing, the Texas Court expressed: “It is well settled in this state that a plea must be entered in every criminal case, and if no plea is entered the trial is a nullity, since there is no issue for the jury or the Court.” Id., 384 S.W.2d at 144. Collateral support for this ruling may be found in Willis v. State, 389 S.W.2d 464 (Tex.Crim.App.1965) and People v. Sturdy, 235 Cal.App.2d 306, 45 Cal. Rptr. 203 (1965). What is there to try unless a matter is in issue?
This defendant may be retried, upon a reversal of this conviction, and it is not a matter of a subjective thought of “turning a criminal lose on a technicality,” for, without question, his constitutional right to have a copy of the indictment was violated. His statutory right to have a copy of that with which he was accused, was likewise violated. Any man or woman brought to the bar of justice is entitled to know the crime with which he or she is charged; it is fundamental law. See generally 2 C. Torcia, Wharton’s Criminal Procedure § 336, at 217-20 (12th ed. 1975). We, in South Dakota, have the right, in the event that the majority position can fasten itself onto a 1914 United States Supreme Court decision,3 to extend a broader protection to the citizens of this state. State v. Opperman, 247 N.W.2d 673 (S.D.1976). See C. Whitebread, Criminal Procedure § 29.01, at 592-97 (1980). If the majority decision is telling the lawyers and judges and people of this state that we no longer must call upon a man to be formally arraigned and to plea to a charge and be given a copy of an indictment or an information, but, rather, to adopt a procedure with some type of an informal, loose, flaccid fashion, I dissent for the reason that it is a destruction of the safeguards heretofore established by the fathers of our state constitution and the legislators who passed the act which is set forth in extenso above. Appellant, for the record, was sentenced to fifteen years in the State Penitentiary. Under my view, this conviction/sentence would be reversed, and, for the posterity of criminal procedure in this state, appellant would be returned to the Bar of Justice for arraignment, plea, and trial.
. SDCL 23A-7-1 provides:
An arraignment shall be conducted in open court, except that an arraignment for a Class 2 misdemeanor may be conducted in chambers, and shall consist of reading the indictment, information or complaint, as is applicable, to the defendant or stating to him the substance of the charge and catling on him to plead thereto.
A defendant must be informed that if the name in the indictment, information or complaint is not his true name, he must then declare his true name or be proceeded against by the name given in the indictment, information or *4complaint. If he gives no other name, the court may proceed accordingly. If he alleges that another name is his true name, he shall he proceeded against pursuant to § 23A-6-20. He shall be given a copy of the indictment, information or complaint, as is applicable, before he is called upon to plead. (Emphasis supplied.)
. For three protections that the double jeopardy clause offers, as enunciated by the United States Supreme Court, see State v. Grey Owl, 316 N.W.2d 801, 803 (S.D. 1982), and State v. Feiok, 364 N.W.2d 536, 542 (S.D.1985) (Henderson, J., dissenting). These protections were later referred to in State v. Biays, 402 N.W.2d 697, 699-700 (S.D. 1987).
. In City of Rapid City v. Albertus, 310 N.W.2d 167 (S.D.1981), this Court utilized the language in Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914), to hold that a failure to arraign was not by itself reversible error. Al-bertus involved a speeding violation and prosecution was under a Uniform Complaint-Summons for speeding. Albertus received an $11 fine and costs. She complained, in her appeal, that she was never formally arraigned. However, Albertus was never prosecuted under either an information or indictment. Most importantly, she wets not charged with a serious crime nor a major felony. Therefore, the Alber-tus decision is inapposite. See SDCL 23A-7-1, which is set forth in footnote 1, supra. South Dakota has a special procedure for speeding tickets instituted by the arresting officer, at the scene, which provides that the speeder may enter a plea of guilty on the ticket that he is handed and waive an appearance before a magistrate. To liken the Albertus procedure to a first-degree rape procedure is unrealistic.