Arizona silver belt., 1894-01-06
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In the Arizoua Daily Gazette there lately appeared dispatch, received by Judge Fitch as follows
 TUCsoN, Dec. 2s, 1893.
 cHearing of motion for row trial in the Tewksbury case postponed by Judge Sloan to the eth of January, District Attorney Hereford desiring to show that the Supreme Court went off ab half cock in the Brash case, of the same nature. JOSEPH CAMPBELL
 The Brash case referred to in the foregoing message is reported in s2 Pacific Reporter, page 26O, and decides that a defendant in Q criminal case, @ho is not given an opportunity to plead, as required by statute, con viction will be reversed on appeal. Judge Sloan in the opinion, speaking for an undivided court, says; 1.-The record in this case fails to show that any plea was ever made by the defen- dant or enteFed by the court. It is suggested by the Attorney General that, in oonsenting to go to trial, and in remaining silent when the Clerk, in the usIfal form, stated to the jury that the defendant pleaded not guilty to the indictment the defendant made Ire plea as khus stated by the Clerk his own. To this it is sufficient to say that the statutory opportunity to plead haviag never been extended to the defendant he was never under any obligation to plead. No plea having been entered by the defendant, there was no issue for the jury, and the yer dsee of the jury and judgment entered thereon are therefore nullities.n
 Another case to the same effect, re- gently decided by the Supreme Court Of the Territory, is Blevins vs. Terri Cory of Arizona. The record ill this case shows Blevins was arraigned and took one day to plead. The next item shows the empaneling of the jury Nothing in the record indicates that Blevins ever plead to the indictment. A certified copy of the opinion has been kindly furnished us by District Attorney Robertson. We here pro duce it in full.
 Opinion by Hon. Geo. c. Gooding, Chief Justice 'Tt appears by the record in this case that the trial pro ceeded without plea by the prisoner, and this being urged against the judg- nent in the case, we think new trial should be granted. Until the defen- dant had pleaded to the indictment there was no issue to be submitted to & jury, and the omission to plead is fatal to the judgment even after yer dict" 52 Cal. 479; Wis. S2O; 53 Mo 32i. This case is reported Book ?, of Opinions Records Supreme Court Page 451.
 The doctrine laid down in these opinions is the law. Wharton's Grim. PleSsa. and Prac. IS Ed.) Sec. 409 says |; ''The right of arraignment on a crim- inal trial may, in some cases, be waived, put 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" Hoskins vs. State, a. III. S7; Gould vs. People, 80 III. 21s; Douglas vs. State, 9 Wis. s2o; People vs- Gaines, 52 Cal. 4SO. Bishop is his legal classic on Criminal Law e6 Ed Vol. l, Sec. 1029a sets forth, until ar Indicted person has plead ed, he is not in jeopardy, khovgh a Jafy has been sworn to try him, or even though there has been an actual trial.n Link vs. The State, Heislr, 252; U. s. vs. Riley 6 Blatch, 2o4. In view of the foregoing authorities, we apprehend that the motion for new trial argued to-day at Tucson will be granted Tewksbury.