ROT, C. —
Defendants were convicted of a violation of the Local Option Law and sentenced each to ten months in jail and to pay a fine of three hundred dollars. They appealed to the Springfield Court of Appeals, where the judgment was affirmed. Judge Farrington dissented on the ground that the majority opinion is in conflict with State v. Hopper, 142 Mo. 1. c. 481, and other cases there set out, and the appeal was transferred to this court.
Defendants conceded that the Local Option Law was in force in Dade county. They, were partners in business as pseudo-druggists; neither had a license as a pharmacist; nor did they have a pharmacist in their employ. Dr. E. Spyers, a retired physician, having no license as a pharmacist, was employed by defendants. A sale was made of a quart of whiskey to Joe Lindley, under what defendants claimed was a prescription written by Dr; Spyers, signed “E. S., M. D., No. —. Date 4-15.” The sale was made by O’Kelley in the store of defendants. The evidence is contradictory as to whether it was in April, July or August, and as to whether defendant Fitch was present. There is no evidence to show that the sale was contrary to the wishes or instructions of the defendant Fitch.
Among other instructions, the court told the jury that if defendants were partners in the store and engaged in the sale of liquor and that O'’Kelley was in general management of the business and sold liquor in Adolation of law, then both were guilty.
The record does not show that defendants were formally arraigned or that they entered a formal plea of any kind. The record proper shows that when the case was called for trial, the defendants appeared in person and by attorneys, and both sides announced ready for trial. The bill of exceptions, shows that at the opening of the trial the information was read to the jury by the prosecuting attorney and that counsel for defendants said “No statement at this time except we plead not guilty.”
Druggists: Illegal Saie of Liquor.
I. The defendants, not having a pharmacist’s license, and having no licensed pharmacist in their employ, were not druggists in contemplation of the statute, and had no right to sell whiskey on a prescription or without it. [State v. Workman, 75 Mo. App. 454; State v. Jordan, 87 Mo. App. 420.] Such being the case, it is unnecessary to pass upon the sufficiency of the prescription.
Sale by One' Partner in Absence of Other: No Licensed Pharmacist.
II. The fact that defendant Fitch was not present when the sale was made does not entitle him to. an acquittal. By the instruction given the jury were required to find that the defendants were partners in the store and engaged in the sale of liquor. As above stated, neither of the defendants was a pharmacist, nor did they have a pharmacist in their employ, and every sale made by them was unlawful. The very nature of the partnership, so far as the sale of liquor was concerned, was a conspiracy to violate the law, and under these circumstances each was liable for a sale made by the other.
Arraignment NodRecord showing: Appeal.
III. Appellants say that the failure of the record to show a formal arraignment and plea is fatal; although the defendants announced that they were
ready for trial, and their counsel, when called on for a statement to the jury, said, “No statement except we plead not guilty,” and although they took part in the trial without protest or objection to such failure.
In the short period of our history as a territory and a State, criminal procedure has undergone a transformation which may well be called a revolution. By the common law a person charged with a felony was not permitted to have a copy of the indictment, nor was he allowed to have the assistance of counsel, except occasionally to argue a point of law. When arraigned at the bar, if he wilfully refused to plead, he could be sentenced when the charge was treason as on a conviction. In other cases he could be sentenced and imprisoned “strong and hard” — 4 Blackstone, p. 325. On his trial neither he nor his wife could testify in his defense. He was not allowed a bill of exceptions, and hence could not be heard in the appellate court on any point involved in the trial save the exceedingly limited number shown by what is known as the record proper.
In 1831, a judgment of conviction in a capital case, Samuels v. State, 3 Mo. 68, was affirmed without the consideration of any question arising on the evidence or instructions. Such being the case, this court was able to consider only the mere stage on which the great drama of the trial had been enacted. It could-not know from the record the age, character or the condition in life of the accused or of the dec'eased, and could know nothing of the guilt or innocence of the accused.
Humane and considerate judges, knowing and appreciating their own inability to see the true merits in criminal cases on appeal were driven by the inequity and injustice of the law -to the opposite extreme of looking vigilantly for errors of form and procedure having no reference to the substantial merits of the
case. The Supreme Court of Massachusetts in 1807 in Commonwealth v. Hardy, 2 Mass. 303, said: “If even to quibble is at any time justifiable a man may quibble for his life.”
Ye will now review the change wrought by our Legislature. As early as 1808, 1 Ter. Laws, page 218, sec. 37, provision was made for furnishing the accused with a copy of the indictment and with the assistance of counsel. This right was further enlarged by Revised Statutes 1825', page 319, section 22. By the revision of 1835, defendant was allowed to have his bill of exceptions. By the Act of 1877, he and his wife were made competent witnesses in his behalf. Later on provisions were made for stenographic reports of the trial; and, where the accused is not financially able to pay for a copy of the stenographic report, it is furnished to him free. On appeal, even though the defendant files no assignment of errors or brief in this court, it is made our duty, by section 5212, Revised Statutes 1909, to examine the record for errors. [State v. Maggard, 250 Mo. 335.] After performing that duty, though it be found that no error was committed on the trial, yet if the verdict was contrary to the law or evidence, it is our duty to reverse. [R. S. 1909, sec. 5284.] And such duty extends to a case where the verdict is the evident result of the passion or prejudice of the jury. [State v. Prendible, 165 Mo. 329.]
On the other hand, the Legislature has been diligent in the work of destroying the old technicalities and quibbles which have been, from necessity, resorted to by the accused, and often by the court in his behalf. G-radully from 1825 our Statute of Jeofails in criminal cases, now section 5115, Revised Statutes 1909, has been enlarged. Prior to 18791 it was confined to the curing of defects appearing on the face of the indictment. By section 1821 of the revision of 1879, its curative power was extended so as to heal defects occurring in the proceedings not on the face of the indictment. As
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ROT, C. —
Defendants were convicted of a violation of the Local Option Law and sentenced each to ten months in jail and to pay a fine of three hundred dollars. They appealed to the Springfield Court of Appeals, where the judgment was affirmed. Judge Farrington dissented on the ground that the majority opinion is in conflict with State v. Hopper, 142 Mo. 1. c. 481, and other cases there set out, and the appeal was transferred to this court.
Defendants conceded that the Local Option Law was in force in Dade county. They, were partners in business as pseudo-druggists; neither had a license as a pharmacist; nor did they have a pharmacist in their employ. Dr. E. Spyers, a retired physician, having no license as a pharmacist, was employed by defendants. A sale was made of a quart of whiskey to Joe Lindley, under what defendants claimed was a prescription written by Dr; Spyers, signed “E. S., M. D., No. —. Date 4-15.” The sale was made by O’Kelley in the store of defendants. The evidence is contradictory as to whether it was in April, July or August, and as to whether defendant Fitch was present. There is no evidence to show that the sale was contrary to the wishes or instructions of the defendant Fitch.
Among other instructions, the court told the jury that if defendants were partners in the store and engaged in the sale of liquor and that O'’Kelley was in general management of the business and sold liquor in Adolation of law, then both were guilty.
The record does not show that defendants were formally arraigned or that they entered a formal plea of any kind. The record proper shows that when the case was called for trial, the defendants appeared in person and by attorneys, and both sides announced ready for trial. The bill of exceptions, shows that at the opening of the trial the information was read to the jury by the prosecuting attorney and that counsel for defendants said “No statement at this time except we plead not guilty.”
Druggists: Illegal Saie of Liquor.
I. The defendants, not having a pharmacist’s license, and having no licensed pharmacist in their employ, were not druggists in contemplation of the statute, and had no right to sell whiskey on a prescription or without it. [State v. Workman, 75 Mo. App. 454; State v. Jordan, 87 Mo. App. 420.] Such being the case, it is unnecessary to pass upon the sufficiency of the prescription.
Sale by One' Partner in Absence of Other: No Licensed Pharmacist.
II. The fact that defendant Fitch was not present when the sale was made does not entitle him to. an acquittal. By the instruction given the jury were required to find that the defendants were partners in the store and engaged in the sale of liquor. As above stated, neither of the defendants was a pharmacist, nor did they have a pharmacist in their employ, and every sale made by them was unlawful. The very nature of the partnership, so far as the sale of liquor was concerned, was a conspiracy to violate the law, and under these circumstances each was liable for a sale made by the other.
Arraignment NodRecord showing: Appeal.
III. Appellants say that the failure of the record to show a formal arraignment and plea is fatal; although the defendants announced that they were
ready for trial, and their counsel, when called on for a statement to the jury, said, “No statement except we plead not guilty,” and although they took part in the trial without protest or objection to such failure.
In the short period of our history as a territory and a State, criminal procedure has undergone a transformation which may well be called a revolution. By the common law a person charged with a felony was not permitted to have a copy of the indictment, nor was he allowed to have the assistance of counsel, except occasionally to argue a point of law. When arraigned at the bar, if he wilfully refused to plead, he could be sentenced when the charge was treason as on a conviction. In other cases he could be sentenced and imprisoned “strong and hard” — 4 Blackstone, p. 325. On his trial neither he nor his wife could testify in his defense. He was not allowed a bill of exceptions, and hence could not be heard in the appellate court on any point involved in the trial save the exceedingly limited number shown by what is known as the record proper.
In 1831, a judgment of conviction in a capital case, Samuels v. State, 3 Mo. 68, was affirmed without the consideration of any question arising on the evidence or instructions. Such being the case, this court was able to consider only the mere stage on which the great drama of the trial had been enacted. It could-not know from the record the age, character or the condition in life of the accused or of the dec'eased, and could know nothing of the guilt or innocence of the accused.
Humane and considerate judges, knowing and appreciating their own inability to see the true merits in criminal cases on appeal were driven by the inequity and injustice of the law -to the opposite extreme of looking vigilantly for errors of form and procedure having no reference to the substantial merits of the
case. The Supreme Court of Massachusetts in 1807 in Commonwealth v. Hardy, 2 Mass. 303, said: “If even to quibble is at any time justifiable a man may quibble for his life.”
Ye will now review the change wrought by our Legislature. As early as 1808, 1 Ter. Laws, page 218, sec. 37, provision was made for furnishing the accused with a copy of the indictment and with the assistance of counsel. This right was further enlarged by Revised Statutes 1825', page 319, section 22. By the revision of 1835, defendant was allowed to have his bill of exceptions. By the Act of 1877, he and his wife were made competent witnesses in his behalf. Later on provisions were made for stenographic reports of the trial; and, where the accused is not financially able to pay for a copy of the stenographic report, it is furnished to him free. On appeal, even though the defendant files no assignment of errors or brief in this court, it is made our duty, by section 5212, Revised Statutes 1909, to examine the record for errors. [State v. Maggard, 250 Mo. 335.] After performing that duty, though it be found that no error was committed on the trial, yet if the verdict was contrary to the law or evidence, it is our duty to reverse. [R. S. 1909, sec. 5284.] And such duty extends to a case where the verdict is the evident result of the passion or prejudice of the jury. [State v. Prendible, 165 Mo. 329.]
On the other hand, the Legislature has been diligent in the work of destroying the old technicalities and quibbles which have been, from necessity, resorted to by the accused, and often by the court in his behalf. G-radully from 1825 our Statute of Jeofails in criminal cases, now section 5115, Revised Statutes 1909, has been enlarged. Prior to 18791 it was confined to the curing of defects appearing on the face of the indictment. By section 1821 of the revision of 1879, its curative power was extended so as to heal defects occurring in the proceedings not on the face of the indictment. As
thus amended, it provides that the proceedings in a criminal case shall not be held invalid for the errors therein stated, “nor for any error committed at the instance or in favor of the defendant; nor because the evidence shows or- tends to show him to be guilty of a higher degree of the offense than that of which he is convicted; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.”
Section 5114, Revised Statutes 1909, prevents the fatal effect of variance between the charge and the proof under the circumstances therein mentioned.
The Legislature has done its full duty. It has enabled the defendant to bring the full record of his case to this court and has ordered us to consider it. It has provided that wherever the verdict of conviction is the result of prejudice on the part of the jury, we shall reverse the judgment and grant a new .trial, even though all the forms of procedure were strictly complied with. On the other hand we are forbidden to reverse a judgment for any failure to follow the law, unless such failure tends to'prejudice the substantial rights of the defendant on the merits, save the failure of the indictment to fully set forth the offense charged. By force of that curative statute it has been held even in a capital case, State v. Taylor, 134 Mo. 151, that an error in an instruction is not reversible unless prejudicial. In State v. Lovell, 235 Mo. 343, it was held that error in the exclusion of evidence, when not prejudicial, is not reversible. Sections 5162 and 5163, Revised Statutes 1909, provide for furnishing the accused with a copy of the indictment. In State v. Schmidt, 137 Mo. 266, it was held that by pleading and going to trial without objection the defendant waived compliance with that statute. Section 5227, Revised Statutes 1909, provides for furnishing the accused with a list of the jurors. In State v. McLain, 159 Mo. 340, it is held that the defendant, by making his challenges
and proceeding without objection, waived his right to object to such failure.
Before considering our own statute and decisions with reference to the arrignment and plea, we will notice the decisions of other courts. It was held in Crain v. United States, 162 U. S. 625, decided in 1896, that a failure of the record to show the arraignment and plea was fatal. Three of the justices dissented. That court cited Commonwealth v. Hardy, 2 Mass. 303, above referred to. In Commonwealth v. McKenna, 125 Mass. l. c. 398, the court said: “The defendant having had full opportunity to plead in the district court and having refused to do so, was by this statute to be tried as if he had pleaded not guilty, and having been so tried, the want of a formal entry of such a plea on the record did not prejudice him and was no error.” The latter case was decided in 1878 and was overlooked in the Crain case. Grigg v. People, 31 Mich. 471, was also cited, but in People v. Weeks, 165 Mich. 362, it was held that where defendant’s counsel announced ready for trial, and filed .an affidavit for continuance denying his guilt, and' later objected .to a postponement of his trial that was asked for by the prosecutor, and where defendant was present during the trial without raising any objection, and heard -his counsel in argument to the jury state that he had pleaded not guilty, he waived the right to an arraignment and plea.
Douglass v. State, 3 Wis. 820, was also cited. That case was overruled in Hack v. State, 141 Wis. 346, and it was held that where defendant is fully informed as to the charge against him and is not otherwise prejudiced on the trial by the omission of arraignment and plea, the omission is not error.- Cases decided by the Supreme Courts of Illinois and Indiana were cited. But in Weir v. State, 115 Ind. 210, the court said: “If we were inclined to a departure in any di
rectioxi from the rulings in prior cases, it would b® towards the liberality of the statute, which declares that ‘In the consideration of the questions which are presented upon an appeal’ in a criminal case ‘the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action of the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant.’ [R. S. 1881, sec. 1891.] ”
And in Fitzpatrick v. People, 98 Ill. 259, and Spicer v. People, 11 Ill. App. 294, it was held that announcing ready for trial is equivalent to a plea of not guilty. It was held that arraignment and plea may be waived in Hobbs v. State, 86 Ark. 361; Brewer v. State, 72 Ark. 145; People v. Bradner, 107 N. Y. l. c. 9; State v. Cassady, 12 Kan. 550; State v. Bowman, 78 Iowa, 519; State v. Straub, 16 Wash. l. c. 113. In Bryans v. State, 34 Ga. l. c. 324, the court said:
“The omission to arraign, in Georgia, furnishes no ground in arrest of judgment; the prisoner cannot, under our criminal system, get any substantial advantage by it. The provisions of the Code and its spirit, in consonance with that of the age, looks only to giving the accused a fair and impartial trial upon the merits of the case, and gives no countenance to the escape of persons charged with crime, upon mere technicalities. The day has passed, and never to return, when the course of justice could be arrested' by trifles and objections having no substantive weight.
“Whilst we give such expression to our opinions,, we will not, by construction, deprive a person accused of any safeguard to which he is clearly entitled by law; but we cannot allow him to sit by silently, with eminent counsel by his side, all cognizant of a casual omission of what is considered mostly a form, and which is uniformly waived when requested, and to snatch, in consequence of it, as it were by indirection, a verdict of not guilty. ’ ’
These decisions of other Statés were in some instances based on statutes similar to ours, and in other cases, not. The eases are too numerous to undertake to .distinguish them.
We will now review the. decisions in our own State. In State v. Saunders, 53 Mo. 234, it was held that the failure of the record to show arraignment and plea was fatal. There was no discussion of authorities. That case was followed and cited without further discussion in State v. Montgomery, 63 Mo. 296.
State v. Agee, 68 Mo. 264, merely said: “As the record shows no arraignment of defendant, this, under repeated adjudications, must accomplish a reversal of the judgment. ’ ’ That case was decided at the October term, 1878. Immediately following that case, by the revisions of 1879, section 1821, the Statute of Jeofails was amended so as to cure errors not on the face of the indictment.
State v. West, 84 Mo. 440, held that the absence of arraignment and plea was fatal without citing any authority and without discussing the effects of the amendment of the statute.
In State v. Vanhook, 88 Mo. 105, the court said: “After the jury is sworn and the trial proceeds, and all the testimony relates to the guilt or innocence of the accused, in a misdemeanor case, it looks like trifling with justice to reverse the judgment because the record fails to show an arraignment and plea of not guilty; but it has been held in a number of cases that this is a fatal error, and it is for the Legislature, and not for this court, to change the law on the subject.”
In State v. Williams, 117 Mo. 379; State v. Walker, 119 Mo. 467; State v. Hopper, 142 Mo. 478, error was confessed, and the point was held fatal.
In State v. Witherspoon, 231 Mo. 706, it was said that an arraignment is prerequisite to a legal trial, but in that case there was an arraignment and plea.
The learned jurists who, after the amendment of the statute, reversed cases for the want of an arraignment and plea, did so, we believe, because the curative force of the statute as to that question was overlooked. They said that such reversal ‘ ‘ Looked like trifling with justice,” and that it was a matter for the Legislature.
Waiver
The Legislature had already acted; and we, obeying its mandate, decline to reverse for such cause. "We are a^so ^ie op™-011 that the conduct of defendants and their counsel as stated amounted to a waiver of an arraignment and plea.
The judgment is affirmed.
Williams,
G.,
concurs.
PER CURIAM. —
The foregoing opinion of Roy, C., is adopted as the opinion of the court.
All the judges concur.