State v. Mikel

102 S.W. 19, 125 Mo. App. 287, 1907 Mo. App. LEXIS 100

Opinion

JOHNSON, J.

Defendant, .a druggist, was indicted and convicted in the circuit court of Boone county on a charge of selling intoxicating liquor in less quantity than three gallons without taking out or having a license as a dramshop keeper or any other legal authority to sell the same. The transcript fails to show that defendant was arraigned or that any plea was made to the indictment. This is a fatal defect. It is just as necessary in misdemeanor as in felony cases that the record should show these facts affirmatively. Until the defendant is arraigned and enters his plea, there are no issues to try or submit to the jury. Without these things being done, there can be no trial, and, as defendant has not been accorded a legal trial, it is immaterial whether or not he made the point in his motion for new trial or in arrest of judgment. It may be raised for the first time in the appellate court. [State v. Sharpe, 95 S. W. 298; State v. Geiger, 45 Mo. App. 111; State v. Haycroft, 49 Mo. App. 488; State v. Hoffman, 70 Mo. App. 271; State v. Saunders, 53 Mo. 234.]

The judgment is reversed and the cause remanded.

All concur.