# Crain v. United States/Dissent Peckham

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* Opinion of the Court
* Dissenting Opinion Peckham
Mr. Justice Peckham, with whom concurred Mr. Justice Brewer and Mr. Justice White, dissenting.
I dissent from the judgment of the court in this case. It seems to me to proceed, not alone upon the merest technicality, but also upon an unwarranted presumption of error arising from the absence of a formal statement in the record showing that the defendant was duly arraigned and pleaded not guilty, although the inference that he was so arraigned and that he did thus plead seems to be plain from the facts which the record discloses. At a certain period of English history, when an accused person had no right to be represented by counsel, and when the punishments for crimes were so severe as to shock the sense of justice of many judges who administered the criminal law, it was natural that technical objections which, perhaps, alone stood between the criminal and the enforcement of a most severe, if not cruel, penalty, should be accorded great weight, and that forms and modes of procedure, having really no connection with the merits of a particular case, should be insisted upon as a sort of bulwark of defense against prosecutions which might otherwise be successful, and which at the same time ought not to succeed. These times have passed, and the reasons for the strict and slavish adherence to mere form have passed with them.
In this case there cannot be a well founded doubt that the defendant was arraigned, and pleaded not guilty. The presumption of that fact arises from a perusal of the record, and it is, as it seems to me, conclusive. There is no presumption in favor of defendant upon a criminal trial excepting that of innocence. Error in the record is not presumed, but must be shown. A presumption that proper forms were omitted is not [p647] to be made. There must be at least some evidence to show it. And yet, because the record fails to make a statement in terms that the defendant was thus arraigned and did so plead, this judgment is to be reversed, and that, too, without an allegation, or even a pretense, that the defendant has suffered any injury by reason of any alleged defect of the character in question. I think such a result most deplorable.
The record sets out the indictment. It then shows that the district attorney for the United States appeared in court, and the defendant in his own person, and by his attorney, also appeared, and then, on motion by the district attorney, it is ordered by the court that a jury come to try the issue joined, and a jury is duly selected, impaneled, and sworn to try the issue joined, and a true verdict to render according to the law and the evidence. The trial proceeds, and the jury return a verdict that the defendant is guilty as charged in the first, second, and third counts of the indictment. In the bill of exceptions, a document prepared by the defendant, it is also asserted that a jury was impaneled, sworn, and charged to try the issues joined in the cause. Can there, from these facts, be a doubt, founded upon any fair presumption, that the defendant had been arraigned, and had pleaded not guilty?
That the plea was of that nature must be presumed from the fact that the jury was summoned to try the issue, and that upon the trial of such issue the defendant was convicted on the first, second, and third counts of the indictment. The evidence stated in the bill of exceptions is directed solely to the issue of guilt or innocence. It would be wholly immaterial upon any other issue, and it is also of such a nature as to show beyond all rational doubt that it was received upon the trial of the issue raised by a plea of not guilty. No other presumption than that an arraignment and a plea of not guilty had been interposed could, from such a record, be reasonably indulged in. The record further there shows a motion made in arrest of judgment, and the grounds thereof, among which no mention is made of any alleged failure to arraign the defendant. The motion is sustained as to the first and third counts of the indictment, and overruled as to the second, [p648] and the defendant excepts to the ruling. The record then continues, and states that on motion of the district attorney the defendant was brought to the bar of the court in custody of the marshal, and, it being demanded of him what he has to say why sentence should not be pronounced upon the verdict, says he has nothing further to say than as already said. There is no statement in the record that the defendant, when thus called upon to speak, said one word or raised any objection as to any failure to arraign him or take his plea. If there had been such failure, was not that a time to speak, and would the defendant not then have spoken? Further, the defendant, after his sentence, obtains a writ of error from this court, and files an assignment of error, and yet no mention is therein made of any absence of an arraignment. Is it reasonable, upon such a record, to infer that no arraignment was had, and no plea taken? Is it not, on the contrary, reasonable to infer that defendant was arraigned, and that he did plead not guilty? Yet by this decision it results that, unless the record states in terms an arraignment and plea, a judgment must be reversed, although the presumption that there was an arraignment and plea arising from the contents of the record is both strong and uncontradicted.
In the face of such a presumption, the simple failure of a clerk to make an entry of the fact of arraignment and plea, although both presumably took place, is yet made a substantial ground for a reversal of a judgment which actually was rendered in due course of a criminal prosecution, and by a court of competent jurisdiction. This ought not to be. There is but a mere suggestion at the end of the brief of the counsel for the plaintiff in error filed in this court, where the objection is for the first time raised, that defendant was not given an opportunity to plead to the indictment before being put upon his trial; never having been arraigned. For the facts counsel refer to the record, and that shows what has already been set forth. I think a clear and necessary inference arises from the contents of the record that the defendant was arraigned and pleaded.
Suppose, however, the defendant, through mere inadvertence, [p649] had not been formally arraigned at the bar, and had not in terms pleaded, but that he was placed on trial without objection on his part, and both sides treated the case as if he had been arraigned and pleaded not guilty, could it be plausibly contended that, nevertheless, a fatal error had been committed by a neglect of this form, and that a judgment of conviction must on that account be reversed? Is it possible that for the first time a defendant can in this court successfully raise this formal objection, and under circumstances showing a waiver of the rule, and yet obtain a reversal of the judgment on that ground alone? To my mind, the mere statement of these questions furnishes their conclusive answer. Some cases may hold the necessity of a formal plea, and that the conduct of a defendant in going to trial without any objection, and as if a plea of not guilty had been entered, did not waive the necessity of such a plea. Those cases are not based on principles which, in my judgment, ought now to be followed.
Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which, under the circumstances, would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.
It is not necessary, however, in this case to place my judgment upon any doctrine of waiver, and I do not base my dissent upon that view of the case.
This record is, as I have said, far from showing that through mere inadvertence the defendant was not arraigned and did not plead. On the contrary, the necessary presumption arising from the facts appearing therein is that the [p650] defendant was arraigned and did plead. To reverse the judgment upon the pure technicality (raised in this court for the first time) that the record does not in terms show an arraignment and a plea, where the presumption arising from the contents of the record is that both occurred, is to my mind a sacrifice of justice to the merest and most formal kind of an objection, founded upon an unjustifiable presumption of error, and entirely at war with the facts as they occurred. If the statute cited in the opinion of the court, Rev. Stat. § 1025, does not apply to a case such as this, it is difficult to think of one for which its provisions could more properly be invoked.
The judgment should be
Affirmed.
I am authorized to state that Mr. Justice Brewer and Mr. Justice White concur in this opinion.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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