The following opinion was filed January 11,1910:
Winslow, C. J.
The plaintiff in error (hereinafter called the defendant) was convicted of selling whisky to a minor of the age of thirteen years, and brings his writ of error to reverse the judgment. The errors alleged will be taken up in their order.
1. A plea in abatement, to the effect that there had been no preliminary examination, was summarily overruled by the •court without requiring issue to be joined thereon. This was probably irregular, ■ but it was in no sense prejudicial. Guenther v. State, 137 Wis. 183, 118 N. W. 640. The record transmitted by the justice was before the court, and showed that there had been in fact an examination, and the only fault found with it was that the justice did not enter in his docket ,a finding that an offense had been committed and that there was probable cause to believe the defendant guilty thereof, but ■simply made this entry: “The court bound the defendant over to the circuit court of Iowa county at its next term.” This court has held that all that is necessary is that the justice ■should hold the defendant to bail or commit him. State v. Leicham, 41 Wis. 565. The words “bind over” are somewhat informal, but have a well understood meaning in the law, namely, to require a person to gjve bail to appear at the trial ■of a given case. 4 Am. & Éng. Ency. of Law (2d ed.) 574. The only defect, therefore) is that the amount of the bail bond ■does not appear in the docket entry; but, as it further appears by the return that a bond was approved, there is no doubt that a bond was given which must have satisfied the requirement •of the justice, and the fact that the amount is not named in the docket is very immaterial. The record shows that the defendant was held to bail and gave bail, and that is all that the .statute requires.
[349]*3492. By a singular oversight tbe defendant was not formally arraigned in tbe circuit court and never pleaded to tbe information. An information in due form was filed; tbe jury was-called and sworn; witnesses for both the state and the defendant were examined and cross-examined; tbe jury was charged by tbe court and rendered its verdict, in all respects as though issue bad been formally joined. Inasmuch as tbe information was valid and tbe jury duly sworn and charged with the defendant’s deliverance, be was put in jeopardy, so that bad he been acquitted be could not have been again prosecuted. He knew perfectly well tbe offense with which he was charged,, and was allowed -to make bis defense just as fully and effectively as if a plea of not guilty had been made; and tbe question now is whether the inadvertent omission of arraignment and plea, which has not in the least affected any substantial right of the defendant, should be held fatal to the judgment.
It is freely conceded that the early Wisconsin decisions answer this question in the affirmative. Anderson v. State, 3 Pin. 367; Douglass v. State, 3 Wis. 820; Davis v. State, 38 Wis. 487. See, also, Crain, v. U. S. 162 U. S. 625, 16 Sup. Ct. 952, where the authorities are. reviewed and the doctrine contended for by the defendant fully sustained by a divided court. It must also be conceded that it is held by the supreme-court of the Nnited States in the Crain Case that arraignment and plea are essential to due process of law, guaranteed to- the-citizen by the XIVth amendment. A state could not therefore pass a law providing for trial without arraignment or plea; but that does not necessarily affect the question whether a citizen may not effectually waive that right. This court has held that constitutional rights may be waived by the defendant, except perhaps in capital clses. Thus an accused person has the absolute constitutional right to a trial by a jury, which means a body of twelve competent jurymen; yet this court held, as early as the case of State v. Vogel, 22 Wis. 471, that by not exercising his right of challenge the defendant waived all objections to the qualifications, of jurors, and a verdict of [350]*350.guilty would stand notwithstanding tbe fact that one of tbe jurors was an alien and tbe further fact that bis alienage was not known to tbe defendant. This doctrine was approved in Flynn v. State, 97 Wis. 44, 72 N. W. 373 (without, however, citing tbe Vogel Case), and even carried further, for tbe Flynn Case was a capital case, and tbe court said that tbe defendant’s announcement that be accepted the jury was “in effect tbe withdrawing of all previous objections to tbe competency of tbe jurors, and a consent to be tried by that jury which could not afterwards be withdrawn.” This rule has been followed in tbe following cases: In re Roszcynialla, 99 Wis. 534, 75 N. W. 167; Emery v. State, 101 Wis. 627, 78 N. W. 145; Cornell v. State, 104 Wis. 527, 80 N. W. 745; Schwantes v. State, 127 Wis. 160, 106 N. W. 237; and Okershauser v. State, 136 Wis. 111, 116 N. W. 769.
In the case of In re Staff, 63 Wis. 285, 23 N. W. 587, it was held that a statute permitting a defendant to waive a jury trial was not unconstitutional, and Justice LyoN, in tbe opinion in that case, says (on p. 294) sec. 7, art. I [of tbe constitution], “confers many rights upon a person accused of crime, every one of which he may waive, without authority of statute, as has often been judicially determined, except the right to be tried by a jury. Such waiver may be express, or it may be by failure to make due objection and exception.” He then malíes an elaborate enumeration of the many rights conferred which the prisoner may waive, which is worth examination. In Hill v. State, 17 Wis. 675, and Stoddard v. State, 132 Wis. ’ 520, 112 N. W. 453, it was held that, following the same principle, a defendant might waive his right to be present when the verdict was returned, and did so waive it by absenting himself voluntarily from the room when the jury came in. It is true that it was held in State v. Lockwood, 43 Wis. 403, that the right of the accused to a jury trial could not be waived, and this was followed in Jennings v. State, 134 Wis. 307, 114 N. W. 492, when it was held that the defendant [351]*351•could not agree to a trial by eleven jurymen. As said in Okershauser v. State, supra, this rule, however, is not to be extended.
It must be conceded, therefore, that many constitutional .guaranties may be waived by the accused in all criminal actions, except capital cases, and the question here presented is whether the court should follow the early cases holding that arraignment and plea cannot be waived, or abandon that principle. Of course no rule of property is involved, and so the court is measurably free to establish another rule if it seem that the former rule is unsound or not supported by the better reason.
The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel,-and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. Under such circumstances it was well, perhaps, that such a rule should exist, and well that every technical requirement should be insisted on, when the state demanded its meed of blood.
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The following opinion was filed January 11,1910:
Winslow, C. J.
The plaintiff in error (hereinafter called the defendant) was convicted of selling whisky to a minor of the age of thirteen years, and brings his writ of error to reverse the judgment. The errors alleged will be taken up in their order.
1. A plea in abatement, to the effect that there had been no preliminary examination, was summarily overruled by the •court without requiring issue to be joined thereon. This was probably irregular, ■ but it was in no sense prejudicial. Guenther v. State, 137 Wis. 183, 118 N. W. 640. The record transmitted by the justice was before the court, and showed that there had been in fact an examination, and the only fault found with it was that the justice did not enter in his docket ,a finding that an offense had been committed and that there was probable cause to believe the defendant guilty thereof, but ■simply made this entry: “The court bound the defendant over to the circuit court of Iowa county at its next term.” This court has held that all that is necessary is that the justice ■should hold the defendant to bail or commit him. State v. Leicham, 41 Wis. 565. The words “bind over” are somewhat informal, but have a well understood meaning in the law, namely, to require a person to gjve bail to appear at the trial ■of a given case. 4 Am. & Éng. Ency. of Law (2d ed.) 574. The only defect, therefore) is that the amount of the bail bond ■does not appear in the docket entry; but, as it further appears by the return that a bond was approved, there is no doubt that a bond was given which must have satisfied the requirement •of the justice, and the fact that the amount is not named in the docket is very immaterial. The record shows that the defendant was held to bail and gave bail, and that is all that the .statute requires.
[349]*3492. By a singular oversight tbe defendant was not formally arraigned in tbe circuit court and never pleaded to tbe information. An information in due form was filed; tbe jury was-called and sworn; witnesses for both the state and the defendant were examined and cross-examined; tbe jury was charged by tbe court and rendered its verdict, in all respects as though issue bad been formally joined. Inasmuch as tbe information was valid and tbe jury duly sworn and charged with the defendant’s deliverance, be was put in jeopardy, so that bad he been acquitted be could not have been again prosecuted. He knew perfectly well tbe offense with which he was charged,, and was allowed -to make bis defense just as fully and effectively as if a plea of not guilty had been made; and tbe question now is whether the inadvertent omission of arraignment and plea, which has not in the least affected any substantial right of the defendant, should be held fatal to the judgment.
It is freely conceded that the early Wisconsin decisions answer this question in the affirmative. Anderson v. State, 3 Pin. 367; Douglass v. State, 3 Wis. 820; Davis v. State, 38 Wis. 487. See, also, Crain, v. U. S. 162 U. S. 625, 16 Sup. Ct. 952, where the authorities are. reviewed and the doctrine contended for by the defendant fully sustained by a divided court. It must also be conceded that it is held by the supreme-court of the Nnited States in the Crain Case that arraignment and plea are essential to due process of law, guaranteed to- the-citizen by the XIVth amendment. A state could not therefore pass a law providing for trial without arraignment or plea; but that does not necessarily affect the question whether a citizen may not effectually waive that right. This court has held that constitutional rights may be waived by the defendant, except perhaps in capital clses. Thus an accused person has the absolute constitutional right to a trial by a jury, which means a body of twelve competent jurymen; yet this court held, as early as the case of State v. Vogel, 22 Wis. 471, that by not exercising his right of challenge the defendant waived all objections to the qualifications, of jurors, and a verdict of [350]*350.guilty would stand notwithstanding tbe fact that one of tbe jurors was an alien and tbe further fact that bis alienage was not known to tbe defendant. This doctrine was approved in Flynn v. State, 97 Wis. 44, 72 N. W. 373 (without, however, citing tbe Vogel Case), and even carried further, for tbe Flynn Case was a capital case, and tbe court said that tbe defendant’s announcement that be accepted the jury was “in effect tbe withdrawing of all previous objections to tbe competency of tbe jurors, and a consent to be tried by that jury which could not afterwards be withdrawn.” This rule has been followed in tbe following cases: In re Roszcynialla, 99 Wis. 534, 75 N. W. 167; Emery v. State, 101 Wis. 627, 78 N. W. 145; Cornell v. State, 104 Wis. 527, 80 N. W. 745; Schwantes v. State, 127 Wis. 160, 106 N. W. 237; and Okershauser v. State, 136 Wis. 111, 116 N. W. 769.
In the case of In re Staff, 63 Wis. 285, 23 N. W. 587, it was held that a statute permitting a defendant to waive a jury trial was not unconstitutional, and Justice LyoN, in tbe opinion in that case, says (on p. 294) sec. 7, art. I [of tbe constitution], “confers many rights upon a person accused of crime, every one of which he may waive, without authority of statute, as has often been judicially determined, except the right to be tried by a jury. Such waiver may be express, or it may be by failure to make due objection and exception.” He then malíes an elaborate enumeration of the many rights conferred which the prisoner may waive, which is worth examination. In Hill v. State, 17 Wis. 675, and Stoddard v. State, 132 Wis. ’ 520, 112 N. W. 453, it was held that, following the same principle, a defendant might waive his right to be present when the verdict was returned, and did so waive it by absenting himself voluntarily from the room when the jury came in. It is true that it was held in State v. Lockwood, 43 Wis. 403, that the right of the accused to a jury trial could not be waived, and this was followed in Jennings v. State, 134 Wis. 307, 114 N. W. 492, when it was held that the defendant [351]*351•could not agree to a trial by eleven jurymen. As said in Okershauser v. State, supra, this rule, however, is not to be extended.
It must be conceded, therefore, that many constitutional .guaranties may be waived by the accused in all criminal actions, except capital cases, and the question here presented is whether the court should follow the early cases holding that arraignment and plea cannot be waived, or abandon that principle. Of course no rule of property is involved, and so the court is measurably free to establish another rule if it seem that the former rule is unsound or not supported by the better reason.
The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel,-and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. Under such circumstances it was well, perhaps, that such a rule should exist, and well that every technical requirement should be insisted on, when the state demanded its meed of blood. Such a course raised up a sort of a barrier which the court ■could utilize when a prosecution was successful which ought not to have been successful, or when a man without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story, had been unjustly convicted, but yet under the ordinary principles of waiver, as applied to ■civilmatters, had waived every defect in the proceedings.
Thanks to the humane policy-of the modern criminal law we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defense. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the state, and may have his witnesses summoned and paid for by the state; [352]*352not infrequently be is tbus furnished counsel more able than the attorney for the state. In short, the modem law has taken as great pains .to surround the accused person with the means to effectively make his defense as the ancient law took pains-to prevent that consummation. The reasons which in some-sense justified the former attitude of the courts have therefore-disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principle based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misdemeanor, who comes into court with his attorney, fully advised of all his rights and furnished .with every means of making his defense, should not be held to-waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking-for it.
Surely the defendant should have every one of his co-nstitni’ tional rights and privileges, but should he be permitted to juggle with them ? Should he be silent when he ought to- ask for some minor right which the court would at once give him, and then when he has had his trial, and the issue has gone-against him, should he be heard to say there is error because-he was not given his right? Should he be allowed to play his game with loaded dice? Should Justice travel with leaden heel because the defendant has secretly stored up some-technical error not affecting the merits* and thus secured a new trial because forsooth he can waive nothing ? We think, not. We think that sound reason, good sense, and the interests of the public demand that the ancient strict rule, framed originally for other conditions, be laid aside, at least so far as-all prosecutions for offenses less than capital are concerned. We believe it has been laid aside in fact (save for the single exception that trial by a jury of twelve cannot be waived unless authorized by a specific law) by the former decisions of this court.
It is believed that this court has uniformly attempted to-[353]*353disregard, mere formal errors and technical objections, not affecting any substantial right, and to'adhere to the spirit of the law which giveth life rather than to the letter which ldlleth. It may not always have succeeded; it is intensely human, but since the writer has been here he knows that the attempt has been honestly made.
In this line the court is glad to welcome legislative assistance and approval. By eh. 192, Laws of 1909 (sec. 3072m, Stats.), it is provided that no judgment, civil or criminal, shall be set aside or new trial granted for any error in admission of evidence, direction of the jury, or any error in pleading or procedure, unless it shall appear that the error complained of has affected the substantial rights of the party complaining. How much this adds to the provisions of sec. 2829, which has been on the statute books since 1858, is not entirely clear. At least it shows the legislative intent to specifically apply the law to criminal actions. Its terms are clear, and will unquestionably assist the court in its effort to do substantial justice in all actions, either civil or criminal, without regard to immaterial errors' or inconsequential defects. This court will loyally stand by this law, and will earnestly endeavor to administer it so as to do equal and exact justice so far as human effort can accomplish that end.
Our conclusion is that the doctrine of Douglass v. State, 3 Wis. 820, and the cases following it, should be overruled. The principle now declared is that the right of arraignment and plea will be waived by the defendant by his silence when he ought to demand it, in all cases (except capital cases) where it appears that he is fully informed as to the charge against him and is not otherwise prejudiced in the trial of the case by the omission of that formality. - Other Code states so hold. People v. Osterhout, 34 Hun, 260; People v. Bradner, 107 N. Y. 1, 13 N. E. 87; State v. Cassady, 12 Kan. 550; State v. Straub, 16 Wash. 111. 47 Pac. 227; Hudson v. State, 117 Ga. 704, 45 S. E. 66.
[354]*3543. The last error alleged relates to the charge. The court concisely and correctly instructed the jury as to the presumption of innocence and their duty to convict only if convinced beyond a reasonable doubt of the defendant’s guilt, and the jury retired. After some hours spent in consultation without reaching an agreement they were brought into court and the trial judge gave them an additional charge, in which he told them, in connection with other remarks, that cases were to be decided upon the weight of evidence, not by counting witnesses, and that a single witness may be more satisfying tiran a half dozen witnesses who contradict him; further, that this was not a case of mistake, but some one had falsified, and that they might consider the motive of the boy who testified to purchasing the liquor, if he had any motive in making a charge that was false, and other remarks in the same general line.
It has been held by the court that in a case where one witness on one side is contradicted by another witness on the other side as to the pivotal fact on which the case turns, and there is no possibility that the testimony of either witness can be the result of mere mistake, it is not prejudicial error to say to tlie jury that one or the other has committed perjury and to suggest that a motive should be found for such perjury. Jackson v. State, 91 Wis. 253, 64 N. W. 838; Douglass v. State, 43 Wis. 392. See, also, Schutz v. State, 125 Wis. 452, 104 N. W. 90. We do not regal'd the statement that cases are to be decided upon the weight of evidence, not by counting witnesses, as calculated to convey a false impression to the jury. They had been expressly and clearly charged that they were only to convict in case they were convinced beyond a reasonable doubt; and this instruction was neither expressly nor impliedly withdrawn, and the one afterward given as to the weight of evidence is not inconsistent with it.
By the Court. — Judgment affirmed.
KekwiN, J., dissents.
[355]*355The following opinion was filed January 11, 1910:
TimxiN, J.
{dubitans). There was neither arraignment nor plea in this case.' The decision overrules Anderson v. State, 3 Pin. 367; Douglass v. State, 3 Wis. 820; and Davis v. State, 38 Wis. 487. These precedents, while mitigating the rigor of the ancient law, had their roots deep in antiquity. Cooley, Const. Lim. (5th ed.) 379, and note 1; Id. (7th ed.) 439, note 2. They were in harmony with the great weight ■of authority. 2 Ency. PI. & Pr. 761-792. As stated in the majority opinion, they stood in the supreme court of the United States for due process of law. Notwithstanding the Chief Magistrate, who holds position and promotion in the -hollow of his hand, has spoken, and that his words have kindled in the University a flame in whose light we are now administering the criminal law, I am reluctant to> proceed so radically and so rapidly along the path of reform. In every well-ordered commonwealth the legislature is the appropriate exponent of public opinion. The courts, for obvious reasons, are not and should not be such exponent. I think even we who are in sympathy with the President and the University should have waited for the legislature to act.
. Again, regarding these overruled-precedents as merely esr ta,Wishing rules of procedure,- is it possible to establish any orderly procedure which will relieve from the consequences of such gross negligence as failure to.arraign the accused and to ascertain whether he pleads guilty or not guilty, former conviction, former acquittal, the statute of limitations, lack of jurisdiction in the court, privilege from arrest, or some other ■defense ? When we have changed the precedents to meet this case of negligence, will that avail against negligence of the same degree which will appear in another form, or with reference to some other essential of an orderly trial ? These considerations make me doubt, hesitate, and refuse my assent. Again, with such slaughter of precedent there should go in [356]*356justification or mitigation “reasons of good regard.” Else this were a savage spectacle.
Now it may be that these precedents deserved this fate. They perhaps deserved death in order that we all might live. They were certainly guilty of being old. They were not innocent of having been born at the wrong time. They perhaps distracted the circuit judges in the consideration of fine scholastic distinctions concerning lack of ordinary care by intruding upon them some rude, practical experience in the exercise of ordinary care. Like primeval man before his fall, unconscious of sin, they neglected to cover themselves with foliage.. They obtruded their classical clearness and simplicity against the turgid toploftiness which closed the nineteenth and began the twentieth century. They failed to stand for any corporate privilege or advantage. Eor all this they perhaps deserved amortisation. But before Oblivion’s curtain falls upon them forever, let me say that in my youth, before professional success and competence and a seat on the supreme bench had their value impaired by realization, and while such things were bright with the glamour of anticipation, these precedents seemed to me profound in their wisdom, unimpeachable in their authority, and clear, definite, and correct in their doctrine. Mentors of my brighter days, farewell 1