(dissenting).
I dissent. The majority, by their opinion, have made it a requirement that in misdemeanor cases where the defendant pleads guilty a complete verbatim record must be made of all the proceedings before the court, leading to and including the sentence. If this is not done, the defendant is entitled to a new trial. I cannot agree that this is, or ought to be, the law. The majority have interpreted subsection 8 of Section 29-24-02, N.D.C.C., which provides a cause for granting a “new trial,” as being applicable even though no trial was held. This is such a case. The defendant entered a plea of guilty and was sentenced by the court. No trial was held as there was no issue of law or fact for trial. The majority opinion interprets subsection 8 of Section 29-24-02, N.D.C.C., as referring “not only to a complete transcript of evidence but also to a complete transcript of the proceedings,” and therefore hold that it is applicable to all proceedings through sentencing. In so doing they have neglected to consider the prepositional phrase, “at the trial.” Subsection 8 provides:
“When the defendant, without fault or negligence on his or her part, is unable to procure a correct and complete trans-script of the evidence given and the proceedings had at the trial.”
[Emphasis added.]
*752The phrase “at the trial” limits the scope of the transcript to the evidence given and the proceedings had “at the trial.”
In criminal cases a trial begins after the jury has been impaneled, or with the swearing of the jury, and it ends when the jury has returned its verdict. 53 Am. Jur., Trial, Sec. 4. Trial to the court begins after the waiver of a jury is entered on the minutes of the court. Section 29-16-02, N.D.C.C. The term “trial” does not extend to such preliminary steps as the arraignment and the giving of the plea. Thomas v. Mills, 117 Ohio 114, 157 N.E. 488, 54 A.L.R. 1220. The word “trial” includes all of the proceedings in the progress of a prosecution after the issues are made up, down to and including the rendition of the verdict. State v. Koch, 33 Mont. 490, 85 P. 272; State v. Swann, 5 N.C.App. 385, 168 S.E.2d 429. Sentencing is more closely analogous to judgment than to trial. Strong v. State, 36 Wis.2d 324, 152 N.W.2d 890.
A review of the statutes of our state on criminal procedure clearly establishes that the law as set forth above is applicable in North Dakota. Chapter 29-13, N.D.C.C., provides for the arraignment. Following the arraignment, Chapter 29-14, N.D.C.C., provides for motion and pleas. The pleas are classified by Section 29-14-15, N.D. C.C., as: (1) guilty; (2) not guilty; (3) a former judgment of conviction or acquittal; and (4) double jeopardy. The plea must be made in open court either at the time of the arraignment or at such other time as may be allowed. Section 29-14-20, N.D.C.C. A plea of not guilty puts in issue every material allegation in the indictment or information. Section 29-14-23, N.D.C.C. After a plea of not guilty, the defendant, if he requests it, is entitled to one or more days to prepare for “trial.” Section 29-16-07, N.D.C.C. The right to at least one day’s time for preparation for trial is absolute. State v. Chase, 17 N.D. 429, 117 N.W. 537. Section 7 of the North Dakota Constitution provides:
“The right of trial by jury shall be secured to all, and remain inviolate; * * * »
Section 29-16-02, N.D.C.C., provides that a trial by jury may be waived by the consent of the defendant and the state’s attorney expressed in open court; otherwise, the issues of fact must be tried by the jury. Chapter 29-17, N.D.C.C., provides the procedure for a trial by jury. Chapter 29-21, N.D.C.C., provides for the order of trial. Thus it is clear that the trial does not begin until the defendant has been arraigned and has entered a plea of not guilty. When the defendant pleads guilty and the court has discretion as to the punishment, it may hear witnesses for the limited purpose of determining what punishment shall be imposed. Section 29 — 14— 18, N.D.C.C.
A new trial is a re-examination of the issues and places the parties in the same position as if no trial had been had, and all the testimony must be produced anew. Section 29-24-01, N.D.C.C. Unless there has been a trial, there can be no new trial. The reference to subsection 8 of Section 29-24 — 02, N.D.C.C., stating the causes for granting a “new trial” is applicable only if there has been a trial. This is made very clear by all eight subsections of Section 29-24-02, N.D.C.C., which provide the causes for a new trial. Subsection 1 states, in part:
“When the trial has been had, * * * ”
Subsection 2 states:
“When the jurors have received out of court any evidence * * * ”
Subsection 3 states:
“When the jurors, after retiring to deliberate * * * ”
Subsection 4 states:
“When the verdict has been decided by lot * * * ”
*753Subsection 5 states:
“When the court has misdirected the jurors in a matter of law, * * * ”
Subsection 6 states:
“When the verdict is contrary to law or clearly against the evidence;”
and Subsection 7 states:
“When new evidence is discovered which is material to the defense and which the defendant could not, with reasonable diligence, have discovered and produced at the trial;
* * *»
Subsection 8, quoted above, also clearly limits its scope to the trial.
The subject matter of the statute should be construed as a whole and with a view of arriving at the intent of the Legislature. Beck v. Workmen’s Compensation Bureau, 141 N.W.2d 784 (N.D.1966); Northwestern Sav. & Loan Ass’n v. Baumgartner, 136 N.W.2d 640 (N.D.1965); Jordan v. Western States Life Ins. Co., 78 N.D. 902, 53 N.W.2d 860 (1952); Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147 (1950); Harding v. City of Dickinson, 76 N.D. 71, 33 N.W.2d 626 (1948); Coverston v. Grand Forks County, 74 N.D. 552, 23 N.W.2d 746 (1946); State v. Sheridan County, 72 N.D. 254, 6 N.W.2d 51 (1942). When this statute is so viewed it is clear that a new trial is available only after trial and that the trial may not begin until after a plea of not guilty has been made. Where a plea of guilty is accepted by the court, there is no trial. In Vigil v. People, 135 Colo. 313, 310 P.2d 552, it was held that under a constitutional provision providing for a speedy trial where the accused pleads guilty, there is no “trial.”
After a determination of probable cause a prosecution for an alleged crime proceeds in four major stages: (1) the arraignment; (2) motions and pleas; (3) trial; and (4) judgment and sentence. If the defendant pleads guilty the third stage —trial—is dispensed with as there is no issue remaining for trial, and the court proceeds to the judgment and sentencing stage.
The defendant has not pursued the remedy available to him under the Post-Conviction Act or by habeas corpus. He has made no claim, and makes no claim now, that his constitutional rights have been violated. He is represented by efficient and effective counsel, and if I were to indulge in speculation it would be my judgment that his counsel has found no cause or ground upon which the conviction could be set aside if he pursued either of those remedies.
The majority have quoted from Herron v. People, 147 Colo. 442, 363 P.2d 1044. However, a reading of that case will disclose that there had been a trial in the county court at which the defendant was found guilty and the trial court, in its findings of fact, recited that a motion for a new trial would be denied. The case is similar to our case of State v. Hapip, 174 N.W.2d 717 (N.D.1970), which the majority also cite but state that it may be distinguished for the reason that it was a litigated case. The Herron and Hapip cases are procedurally similar as both were litigated cases and are not authority in this case.
The majority also make reference to Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, in neither of these United States Supreme Court decisions is it held that a verbatim record must be made from which a correct and complete transcript may be prepared and made available to the defendant, or the court, in order to determine on review the prerequisites of a valid waiver of the right to counsel or whether a guilty plea was voluntarily made. The court did hold that the waiver could not *754be presumed from a silent record. However, the court said:
"The record must show, or there must be an allegation and evidence which show, * * * ” [Emphasis added.]
that an accused intelligently and understandingly waived his constitutional rights or that his plea of guilty was voluntarily made. The quoted language indicates to me that, if the record does not so show, evidence may be produced in support of an allegation that the defendant’s constitutional rights were preserved or that his guilty plea was voluntarily made.
The Federal Constitution does not require that a record be made in State criminal prosecutions, but if a defendant collaterally attacks the State criminal proceeding on a claim, after conviction, that he was deprived of his Federal constitutional rights, such claim raises issues which the United States Supreme Court has said cannot be decided in favor of the State on a silent record. It therefore has placed the burden on the State to allege and prove by evidence that it has complied with the Federal constitutional requirements, when the record of its proceedings does not so show.
The majority have foreclosed the State from this opportunity by their decision in this case. In my opinion, they have gone far beyond the holdings of the United States Supreme Court.
Post-conviction procedure acts and habeas corpus proceedings are evidentiary proceedings at which both parties may introduce evidence and the court makes its findings based on the evidence produced. These are in harmony with the high court’s ruling.
In view of the holding of the majority it appears to me that hereafter a verbatim record of the arraignment, the plea, and the proceedings leading to and including the sentence must be recorded verbatim by a court reporter, or a stenographer appointed by the judge of the court, in all cases where guilty pleas are entered. Such record cannot be made by a magnetic recording device. State v. Severson, 75 N.W.2d 316 (N.D.1956). .This case involves a misdemeanor punishable by imprisonment for not more than six months and a fine of not more than $500. In counties not having a county court with increased jurisdiction, a county justice has jurisdiction of such an offense. It therefore appears that the county justice court is also governed by this decision and the county justices will hereafter be required to have in attendance a court reporter, or a stenographer, for the purpose of making a verbatim record of all the proceedings had in that court where a plea of guilty is received.
I would affirm the order denying the motion for a new trial. If the defendant has a valid claim that his rights have been violated by the county court, he has a speedy and effective remedy under our Uniform Post-Conviction Procedure Act.
KNUDSON, J., concurs.