Opinion by
Mr. Justice Kephart,
Appellant was convicted and sentenced to prison for conspiracy to defraud. The Superior Court affirmed the conviction and from that judgment an appeal was allowed.
The order allowing the appeal was restricted to “whether the defendant’s constitutional right to an impartial trial by jury was denied by the action of the trial judge in accepting the agreed statement of facts subject to any contradictions contained in the evidence produced in the trial of the codefendant, and in entering judgment and pronouncing sentence upon his conclusions drawn from the statement and such other testimony.” Section 6 of the Constitution provides that “Trial by jury shall be as heretofore, and the right thereof remain inviolate.” Inasmuch as the docket shows that no plea was entered or a jury sworn to try the defendant, it was a clear violation of his constitutional right for the trial judge, by an unwarranted usurpation of the jury’s function, to assume to determine the question of the defendant’s guilt or innocence on the statement of facts submitted to him, together with the evidence presented in another and different, although related, case. The defendant’s rights are not to be thus prejudiced; unless it affirmatively appears in a criminal case that the jury was sworn as to all defendants, the constitutional provision is breached: Mansfield’s Case, 22 Pa. Superior Ct. 224, citing Doebler v. Com., 3 S. & R. 237; Dunn v. Com., 6 Pa. 384; Pennell v. Percival, 13 Pa. 196; Van Swartow v. Com., 24 Pa. 131; Warren v. Com., 37 Pa. 45; Byers v. Com., 42 Pa. 89; Lavery v. Com., 101 Pa. 560; Stewart v. Com., 117 Pa. 378; Com. v. Saal, 10 Phila. 496. Moreover, the order allowing the appeal was broad enough to present to us any questions as to the substantial infringement of the right to trial by jury. And, of course, basic and fundamental error, such as here, will be considered even if not pointed out in the court below: White v. Moore, 288 Pa. 411. “A man is not to be deprived of his liberty and reputation because of the inadvertence of a trial judge or the carelessness of his counsel in failing to call the attention of the trial court to palpable error which offends against the fundamentals of a fair and impartial trial”: Com. v. O’Brien, 312 Pa. 543, 546.
The indictment on which Howard Pent, appellant, was found guilty, charged Alexander Robinson, Howard and Robert Pent with conspiracy to defraud a banking institution. When the jury was called and examined on their voir dire it was by counsel for Robinson only. The assistant district attorney asked each juror, with but one exception, “Do you know Mr. Robinson, the defendant?” Pent’s name was not mentioned. His counsel took no part in that examination. When the plea was entered it was entered as to Robinson only, and when the jury was sworn it was sworn as to Robinson only. The record shows that no plea was entered as to Pent, and that the jury was not sworn as to him.
Counsel representing defendant Howard Pent bad prepared a set of facts with the assistant district attorney before the case was called for trial; these were to be submitted to the court below. Its decision as to Pent’s guilt or innocence was to be based on this statement. A plea had been entered for Robinson and the jury was sworn only in his case. The omission of these formalities as to Howard Pent was no doubt brought about under the following circumstances:
The statement of facts was submitted as the trial opened in Robinson’s Case. The trial judge then gave Pent one of two alternatives: (1) “I am perfectly satisfied to have you two gentlemen, after the conclusion of the case, present any agreement as to facts that you shall have to offer”; (2) “If you want to do that now, you may; but if you do it now, you must present it subject to any corrections or modifications that may be offered in the presentation of the Commonwealth’s evidence.” The agreed statement of facts was not presented to the court or jury. During the Robinson trial, Pent’s counsel took no part in the examination or cross-examination of witnesses. At the conclusion of the Commonwealth’s case, the district attorney made this offer: “I now want to offer in evidence this agreed statement of facts between Mr. Saul and myself with the exhibits attached. It is also agreed that any exhibits which have been offered in Mr. Robinson’s case should be considered a part of this agreed statement of facts.” The court, “You are offering this now as to the Pents?” Mr. Barr, “Yes. And it
may be considered as if taken in the form of testimony, as an agreed statement of the testimony.”
But Pent’s counsel, at this point, demurred to the evidence. It is manifest that the only evidence he believed he was demurring to was that contained in the statement of facts with the modification agreed to, namely, the “exhibits” in Robinson’s Case. The court said as to the “agreed statement” offered by the assistant district-attorney, “You are offering this now as to the Pents?” Clearly, in the mind of the district attorney, there was nothing in the Robinson testimony that contradicted the agreed statement of facts other than the exhibits, for he had so limited the offer of the statement. If the district attorney had any doubt about any other testimony in that case he could at least have endeavored to make the statement subject to all the testimony in the Robinson Case.
The trial judge in finding defendant guilty took into consideration the facts developed in the Robinson Case, but refused to consider the agreed statement of facts. See Com. v. Smith, 97 Pa. Superior Ct. 157. If the statement of facts was to be believed, Pent was not guilty, as criminal intent was denied therein.
Had the case then gone to the jury as to Pent, without a jury sworn and plea entered, a conviction could not stand. Had the case then gone to the jury and Pent been acquitted, that acquittal would have been for naught as Pent could not plead former acquittal; as to him there had been no trial: cf. Com. v. Zepp, 3 Clark 311, 5 Pa. L. J. Rep. 256, Parsons, J.
With the record in this condition there could be no demurrer to the evidence, as will be seen later. A trial by jury must preserve all the fundamental and basic requirements of such trial. Immaterial irregularities may be overlooked. See Sadler, Criminal and Penal Procedure, section 434; Com. v. Fritch, 9 Pa. Co. Ct. 164. But irregularities that strike at the foundation of a trial should never be tolerated. A defendant in a criminal case cannot waive trial by jury: Com. v. Hall, 291 Pa. 341. Ade-
fendant cannot and should not be permitted to waive the swearing of his jury. The swearing of the jury is not a mere formality. In capital cases it is this very act which determines whether or not the defendant is in jeopardy.
This omission, affirmatively shown as a fact of record, is so vital to trial by jury that further discussion is unnecessary. While it is the duty of a trial judge to see that a jury is sworn, it is the duty of the district attorney to see that pleas are entered and that the jury is sworn as to all defendants who go to trial. In this view of the case, without jury sworn, and with defendant taking no part in the trial, he may he considered as a spectator; he was never on trial.
The court of quarter sessions is a court of record. It is the duty of the clerk of that court to make an official record, in a hook kept for that purpose, of the proceedings vital to the cause then before the court. What proceedings are more vital in a criminal case than the swearing of the jury to try the cause? It may be assumed that in the regular course of business such duties will be attended to, and general experience shows this to be correct, but this assumption cannot be permitted to rise to the force of legal presumption, because to do so would be to permit mere deductions to take the place of vital elements in a criminal trial; the record should, therefore, affirmatively show the existence of such vital procedural matters. See 5 Wigmore on Evidence, 2d ed., section 2534. In the instant case, the record completely fails- to show that the jury was sworn to try him. Without destroying the safeguards of trial by jury as known to the common law, we cannot presume that such was done. We have definitely passed on this question.
In Dougherty v. Com., 69 Pa. 286, it was contended that there was a presumption, in criminal as well as in civil cases, that the proceedings were regular, and that it was incumbent upon the plaintiff in error (defendant) to
show affirmatively by the record that errors were committed before we could interfere. We there held that where the substantive part of a record was clearly wanting its existence may not be supplied by the presumption that all things are rightly done. The presumption that “things are rightly done” applies to presumptions that emanate from the record, as, for example, when the record shows that the jury was sworn as to the defendant it will be presumed that they were properly sworn or affirmed.
In Doebler v. Com., supra, a conviction was reversed because the record failed affirmatively to show that the twelve jurors were sworn. We said: “It is stated in the record, that a jury being called, came, etc. The names of the jurors are then given, which are eleven only in number, although they are said to be twelve sober, judicious, honest and lawful men. It is afterwards mentioned, ‘that George Fisher, one of the jury (whose name is not among the eleven), appearing insensible from intoxication, the court directed him to be withdrawn and another called in his stead, the counsel for the Commonwealth agreeing thereto, and the counsel for the defendant declaring that he neither assented nor objected to it.’ Supposing, now, that the juror called in the stead of Fisher, with the others whose names are mentioned, made twelve, yet it nowhere appears what his name was nor that he was sworn . . . but it does not appear, that anything more is to be found than the record first sent up.
Inasmuch then as from that record it does not appear that the defendant was tried by twelve jurors, lawfully sworn, etc., I am of opinion, that the judgment should be reversed.” Commenting on this case in Dunn v. Com., supra, we stated that the record showed that twelve jurors came but only eleven were named; the one named George Fisher was omitted. We said: “But the court
reversed the judgment, because it did not appeal’,
from the
record, that twelve jurors were sworn. This is a strong case, stronger than the one in hand, and establishes that presumptions are not to be allowed
when they would arise almost inevitably from the
record[Italics supplied.] In Pennell v. Percival, supra, the Doebler Case was again referred to as an authority; it was there stated that the record did not show that twelve jurors were sworn. In Com. ex rel. v. Egan, 281 Pa. 251, 257, in discussing the effect of Com. v. Doebler, supra, we said, “The decision reached was expressly based on the fact that the record failed to show that the twelfth and substituted juror was sworn.”
In Dunn v. Com., supra, it was not stated in the record that the defendant was present when the jury returned its verdict, nor indeed was it expressly stated that he was present at his own trial. The record did show that he was arraigned and pleaded, and that a day or two later “men duly summoned, returned, chosen, by ballot, impaneled and sworn, Nov. 13, 1844, who, upon their oaths, did say,” etc. Furthermore, it did not affirmatively appear that the defendant was present when the judge sentenced him, although it did appear in the record “the court sentenced George Dunn . . . to be taken to the jail in Allegheny County,
from, whence you came.”
[Italics supplied.] At page 389, Judge Coulter, the writer of the opinion, said, “We may safely presume, as individuals, that, in tranquil times, and in an enlightened city, the conduct of the trial was all right; but, as a court, we can look only to
the record,
for this record and judgment will be recorded as a precedent for other times; and, if we let in presumptions to supply omissions and defects in records, it will by and by be deemed scarcely necessary to show by the record any of the important safeguards of the trial by jury; and the common-law forms stoutly asserted as a shield of liberty, by the Hampdens, Russels, and Sidneys of other days, will lose their value. But forms are not merely a shield against the despotism of
kings, for there is occasionally a despotism in all countries — a despotism whose terrible voice is heard in tumults and excitements — in the rage of unrestrained and impetuous will. It is then that the stern and inflexible rules of the common-law trials by jury will best prove their importance and value.” This language is particularly applicable in the present day. If the wholesome principle of the common law that a man is to be presumed innocent until proven guilty is not to be done away with, “every record of this kind ought to show clearly that the prisoner was tried and sentenced, and is to suffer according to the substantial forms of the law”: Dunn v. Com., supra.
In Pennell v. Percival, supra, it appeared by the record that thirteen jurors were sworn to try the case. The reason apparently was that one juryman did not appear at the trial of the case. “The record presents the singular spectacle of thirteen jurors sworn to the same case, one of whom remains sworn to the present time, without having either rendered a verdict or been properly dismissed. That a case at law tried by thirteen jurors has been held to be error, see Whitemarsh v. Davis, 2 Haywood 113; so, also, in Doebler v. Com., 3 S. & R. 237, it is ruled to be error, if it does not appear from the record that all the jurors were sworn. Thus, when the names of eleven jurors were given on the record, and it was afterwards stated that one of the twelve jurors was withdrawn and another called in his stead, but the name of the juror last called was not given, and it did not appear that he was sworn, judgment was reversed. It was not urged in either of the cases cited, that the mere fact of the trial was evidence of assent. Indeed, in Doebler v. Com., there was strong reason to believe the cause was tried by the requisite number of jurors, and that the error complained of arose from a clerical mistake; but, notwithstanding, the judgment was reversed. It is nothing, that the latter is a criminal case; as, so far as concerns the jury, the mode of selection is the same. The case must be determined by the record,
and it is of tlie first consequence that so important an element in the administration of justice as a jury, should be selected in the mode clearly pointed out by the act.” The duty enjoined in Pennell v. Percival, supra, was followed in Lillie v. Am. C. & F. Co., 209 Pa. 161.
Another case cited is Jewell v. Com., 22 Pa. 94, where it was held that we have no authority to look beyond the record as made up in the court below, which should include the min.utes or loose papers whether entered on the docket or not. And in Taylor v. Com., 44 Pa. 131, 132, we said: “But the complaint is, that it does not appear by the record that he had these constitutional and legal rights accorded to him and I agree that, if this were true, the conviction could not stand. In order to ascertain how this is, we must apply ourselves to ascertain what is the record. Is it the minutes of the clerk, or the record presumed to be made up by the court, containing a short and distinct history of the proceedings constituting the trial and judgment, and kept among the records in the well-known and authorized record books? If it be not the latter, there is no safety in records, and their imputed absolute verity would be a mere abstraction, meaning nothing, and resting only on a duty to believe in them. When, therefore, a record is made up, the elements constituting it are not suffered to contradict it. Neither the knowledge of the court nor the minutes of the clerk can avail for this. Either one of them or both together may suffice to correct it, if resorted to in proper time, but the elements so used to correct become the record, and are no longer the recollection of the court, or the minutes of the clerk.
“Now, we have here a complete récord of the court, and also the minutes of the clerk, from which it is to be presumed the record was made up, and it is claimed that the latter may not merely explain but contradict the former; that we must consult the inorganized and informal matter, and so set aside the organized, approved, and formal reéord; that is to say, attack and overturn the record by
something less than the record; overthrow absolute verity by that which imports no absolute verity. To state the proposition is to demonstrate its fallacy.”
But it is argued that “It is unimportant whether the jury was sworn or not,” and that a retrial should not be ordered for such harmless error. Is it harmless error for a defendant to go to trial without a jury sworn to try him? There is not a single case of record in this State that we have been able to discover — and we feel sure that there is none — in which the jury was not sworn and the demurrer to evidence came at the conclusion of the Commonwealth’s case. To hold that it was unimportant whether the jury was sworn or not, in the case of a demurrer to evidence, is an invitation to Star Chamber proceedings. Such a rule would also set aside Com. v. Hall, supra, wherein it was held that jury trial may not be waived. Moreover, how can there be a demurrer to evidence until that evidence is produced in proper form: i. e., before a jury properly sworn or affirmed? If, without plea or jury sworn — or even called, for that matter— a defendant may appear before the judge, with or without an agreed statement of facts presenting his defense, and simply submit to the court the Commonwealth’s evidence and his own statement of facts as a basis upon which the judge shall enter judgment, then the Hall Case amounts to nothing, and judges may, as did judges of old, convict because of popular clamor or popular applause, without the healthy safeguard of a jury’s verdict. Defendant’s rights are safeguarded by adhering to common law forms which existed long before the present Constitution; formalities created as a protection for the innocent and in order to insure a fair trial are not to be sacrificed because of a popular clamor for conviction. It is not amiss to quote again the language of Judge Coulter in Dunn v. Com., supra: “But forms are not merely a shield against the despotism of kings, for there is occasionally a despotism in all countries — a despotism whose terrible voice is heard in tumults and excitements — in the rage of un
restrained and impetuous will. It is then that the stern and inflexible rules of the common-law trials by jury will best prove their importance and value.” Against this relaxation of rules in the trial of criminal cases, see Com. v. Miller, 313 Pa. 567; Com. v. Mull, 316 Pa. 424.
It is said that Pent’s failure to plead is of no moment. Wharton, Criminal Pleading & Practice, 8th ed., section 409, states: “The right of arraignment in a criminal trial may, in some cases, be waived, but a plea is always essential. The court cannot supply an issue after verdict where there has been no plea, notwithstanding that the defendant consented to go to trial.” See Com. v. Gabel & Gabel, 79 Pa. Superior Ct. 59. To indicate the importance of the plea, the trial court, in Com. v. Raffolowitz, 8 Mont. Co. L. Rep. 210, had the jury resworn because it had been sworn prior to the entry of a plea by the defendant. In Com. v. Blucas, 15 Pa. Gist. R. 82, the court held that the trial could not proceed without a plea, since without a plea there is no issue, and without an issue there can be no valid trial, there is nothing to try. See Shelp v. U. S., 81 Fed. 694; Crain v. U. S., 162 U. S. 625; Lynch v. State, 99 Tenn. 124, 41 S. W. 348.
But, it is asserted in the application for allowance of an appeal to this court, the defendant pleaded “Not Guilty.” We need not discuss the manner in which such petitions are gotten up. The fact is, and still remains so, that the record does not show his plea. Neither counsel nor the court can correct that record in the manner here attempted. That such proposition has been definitely ruled is without question. We have held that an opinion of a trial court refusing a new trial is no part of and cannot correct the record in the case; a fortiori, a petition to this court for an allocatur cannot thus challenge a record. In Cathcart v. Com., 37 Pa. 108, 110, it is stated, “The record, however, recites that they [the jurors] were ‘all sworn or affirmed respectively to try, etc.’ This of course raises the presumption that they were properly sworn or affirmed. . . . One paper book, indeed, contains part of
the opinion of the court below, upon the motion for a new trial, in which it is stated that the jury were sworn jointly and severally, instead of severally; but such an opinion is no part of the record, and it has often been held that the record cannot be corrected by it.”
Where, however, a jury has been sworn and defendant participates in the trial, examining and cross-examining witnesses, a plea of not guilty is inherent in the act of defendant. It is not a case of waiver or presumption; his acts are tantamount to a plea: Garland v. State of Washington, 232 U. S. 642; Com. v. Saler, 84 Pa. Superior Ct. 281, 287. Defendant did not participate in the trial of the case. As we have stated, he sat as a spectator until the district attorney offered in evidence the statement of facts upon which he believed he was to be either acquitted or convicted.
While judgments should not be reversed for mere formal defects after a trial on the merits (Sauerman v. Weckerly, 17 S. & E. 117; State v. Heft, 155 Iowa 21; People v. Weeks, 165 Mich. 362; Garland v. State of Washington, supra), where there is no such trial, then a new trial should be granted.
It is said that these defects are inconsequential because appellant demurred to the evidence.
Historically and basically a “demurrer to the evidence” in a criminal case is part of a trial by jury.
A demurrer to evidence in a criminal case presupposes the presence of a duly constituted jury sworn to try the defendant demurring. The jury must be impaneled, an issue submitted, and a jury sworn to try that issue; at the conclusion of the Commonwealth’s case a demurrer to the evidence may be presented and allowed. Since the case of Com. v. Parr, 5 W. & S. 345, the practice of demurring to the evidence by defendants in criminal trials has been recognized. In that case defendant demurred to the Commonwealth’s evidence, the Commonwealth joined therein, the court below discharged the jury, and, after hearing the counsel on both sides, gave judgment for the defendant. On ap
peal it was argued that it was error to have discharged the jury, but this court held that such action was proper, the court saying “. , . the court may, if they think fit, overrule the demurrer at once, and direct that the evidence shall he submitted to the jury for them to pass on the fact. In the case, however, under consideration, the court sanctioned the demurrer, and the Commonwealth joined in it, without any distinct admission being required from the defendant to be placed on the record of the fact, which the evidence demurred to conduce to prove.” In Hutchison and Batchelder v. Com., 82 Pa. 472, wherein defendants demurred to the evidence, this court said: “The discharge of the jury is one of the errors assigned. In this we think the court below was right. It is true a jury are not only judges of the facts in a criminal case, but they are also judges of the law under the advice and instruction of the court. It was in the power of the defendants to require the jury to pass upon the whole case. But they waived this right by their demurrer to the evidence. By this act they threw the decision of both the law and the facts upon the court, and the discharge of the jury was entirely proper. They had no further functions to perform: Com. v. Parr,” supra.
Demurrers to evidence in criminal practice are of very infrequent occurrence. In some states, where the question has arisen, the courts have denied altogether the right to demur in criminal causes, and although there are instances where such demurrers have been allowed, it is considered that the practice is not to be encouraged.
Demurrers in criminal cases have been found more frequently in appeals to the Superior Court.
A motion “to submit the bill” upon the conclusion of the Commonwealth’s evidence cannot be used as a substitute for a de
murrer: Com. v. Sonis & Sonis, 81 Pa. Superior Ct. 205; nor can a motion in arrest of judgment: Com. v. Nathan, 93 Pa. Superior Ct. 193. In this case there was no participation by appellant in the selection of a jury to try the case; there was no opening to the jury outlining a case, no cross-examination or examination of witnesses for and on behalf of the Commonwealth or the defense. It is of no moment that the court said he was on trial. He must actually be placed on trial: Com. v. Kolsky, 100 Pa. Superior Ct. 596.
A part, and an absolutely necessary part, of jury trial is a sworn jury. This cannot be waived or dispensed with; without it there is no trial by jury. Another essential is a plea entered, but when defendant participates in the trial of a case fully, his action may be tantamount to a plea. There must then be the submission of evidence. It is following this a demurrer to the evidence may come in. The importance of adherence to forms in criminal procedure may not be entirely overlooked: Com. v. Brown, 138 Pa. 447. It promotes the orderly presentation of the case, guards against surprise and uncertainty, and insures the security of results reached in the trials of eases. The attempt to substitute new procedures ordinarily results in confusion and misunderstanding which permits needless litigation as well as the escape of the guilty. It is for the legislature to prescribe proper changes and not for the courts to do so.
Judgment reversed and a venire awarded.