Was he Guilty?

J. S. was a clerk who attended his employer on a race track to record in a book his employer's bets on the races. Was he guilty of "occu pying a place on the ground for the purpose of recording bets,' under a penal statute making that a punishable offense?

See "Occupant-Agent or employee," in Words and Phrases, for the answer

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LEGAL DIRECTORY

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Central Law Journal.

ST. LOUIS, MO., APRIL 10, 1914.

FAILURE OF THE RECORD IN A CRIMINAL CASE TO SHOW THAT DEFENDANT WAS ARRAIGNED AND PLEADED NOT GUILTY.

The Supreme Court of Missouri, Division No. 2, has lately held, in a misdemeanor case, that failure of the record to show that defendant was arraigned and pleaded not guilty, does not avoid a verdict of guilty, the case being called for trial, defendants appearing, both sides announcing ready, the information being read to the jury and the case being entered upon and defended in the ordinary way, defendants' counsel saying, "No statement at this time except we plead not guilty." State v. O'Kelley and Fitch, 164 S. W.

In Missouri decision from the very beginning has adhered undeviatingly to the rule, that a plea is necessary or that, if defendant refuses to plead a plea of not guilty shall be entered, a statute enacted in 1833 and remaining in its original form as a part of the law of Missouri thus requiring.

That statute reads as follows: "When a person shall be arraigned upon any indictment or information, it shall not be necessary to ask him how he will be tried; and if he deny the charge in any form, or require a trial, or if he refuse to plead or answer and in all cases when he does not confess the charge to be true a plea of not guilty shall be entered and the same proceeding shall be had, in all respects, as if he had formally pleaded not guilty to such indictment or information." There is no statutory provision saying that an accused must be arraigned or that a trial shall not be entered on without an arraignment or plea, but this section merely implies that arraignment is required. The statute evidently was enacted in view of the common law requiring

arraignment and modifying the course to be taken when this is done. We take it, therefore, that the statute should be taken as saying that an accused must be arraigned, unless he pleads without arraignment, and upon being arraigned the prescribed course should be followed.

Reading the statute in this way it remains to inquire whether its specific command need not be followed, upon the theory that it merely requires a technicality, compliance with which safeguards no rights of an accused.

Looking at the statute we see "it shall not be necessary to ask him how he will be tried." This intimates that the law provides for this and he has no choice. Then if he refuses to plead or answer a plea of not guilty shall be entered. It seems to us that here is something to be safeguarded, namely, his right to plead or answer specially.

Suppose, for example, an accused desires to file a dilatory plea and has not done so because he has never been arraigned, by what procedure may he do this after a trial and verdict without arraignment? Is he due to file it before arraignment? If not, is it incumbent on him when a trial is entered on without arraignment to suggest to the court that he proposes to file such a plea or it shall be deemed waived?

This gets us away from technicality to waiver and entering that field we are confronted with different principles. For example, a plea of not guilty may waive arraignment as often has been held, but may no plea at all be deemed a waiver of arraignment? The form of this statute implies not. In other words merely to omit to arraign where a plea is filed, is not fatal, but if arraigned defendant must plead.

Suppose, for example, the record showed arraignment and no plea and a trial and a verdict, should the mandatory provisions of the statute requiring certain things be disregarded, when defendant might have pleaded guilty or might have pleaded specially?

The opinion by Roy Comissioner and the special concurring opinion by Faris, J., of the Missouri Supreme Court, are forceful appeals against technicality, but in our view there is no change in conditions which justifies the overriding of a plain statutory provision. Even though this case, as standing upon the record it does, should be affirmed, there was no occasion for the court going beyond what was necessary to be decided therein, if it has done that. It may have been rightly decided on the theory that there was at least an informal plea. Deciding it on this ground the judges would not have to take the illogical ground that the technicality could be disregarded in all except capital cases.

Many of the cases-generally modernwhich inveigh against technicality may not have statutes precisely similar to that of Missouri, and if it prescribes a mere technicality we do not perceive why it may not be waived as to greater as well as to lesser crimes. The statute makes no difference in the grades of offenses and if our enlightened jurisprudence has no use for observance in the one case it has none in the other. All criminal law has reference to liberty and we have regular sessions of our legislatures to amend our laws as they see fit. While we believe in reform of judicial procedure and, with that, the abolition of useless technicality, we think the courts are proceeding a little too rapidly when they disregard the plain requirements of statutes by calling When courts underthem technicalities. take to disregard legislation, on a plea of this kind, it brings into a system a greater evil than is the survival of technicalities known to the common law but but which changed conditions make unsuited to our times. There is no surer way to get us into a muddle than for courts to be going beyond the strict necessities of a case to announce procedure in seeming defiance of a statute. Furthermore there is a rule of stare decisis of some force in this country.

EVIDENCE-ADMISSIBILITY

OF DYING DECLARATIONS IN OTHER THAN CAPITAL CASES.-The Supreme Court of Kansas holds that generally and not as confined to homicide cases, dying declarations are admissible in evidence. Thurston v. Fritz, 138 Pac. 625; Benson, J., dissenting.

The court says that: "The rule admitting and the rule restricting the declaration as indicated are entirely court made, and when the reason for this restriction to cases of homicide ceases, if it ever existed, then such restriction should likewise cease." The trouble with this is that there appears nothing in any changed conditions for the restriction to cease, and the court does not attempt to point out the particular conditions now existing for making this restriction to cease. If it had been argued that the reason of the rule for making any exception in homicide cases had ceased and, therefore, the exception should cease, the court would have found an opening for a dec laration against the exception.

The theory in homicide cases was that the slayer had put a witness out of the way and, there being the presumption that one in articulo mortis would tell the truth, defendant could not object to a dying declaration-the necessity for it arising out of defendant's own act. When death has nothing to do with the matter in controversy, one's right of cross-ex amination has not been affected.

The dissent goes on the theory that any change in the rule should be by legislation, a very just observation and one that would apply equally to homicide cases were it not the fact that this is a rule so long recognized that legislatures are presumed to take notice of its existence.

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APPEAL AND ERROR MODIFYING JUDGMENT BY REDUCING IT BECAUSE OF ADMISSION OF ILLEGAL EVIDENCE.New York practice has gone to the extent of reducing and affirming a judgment where evidence of a speculative character in enforcement of damages, in a personal injury case, Hess was wrongly admitted. V. Methodist Book Concern, 146 N. Y. Supp. 143.

In this case it was said: "The learned court erred in admitting over defendant's objection and exception, much evidence of a conjectural and purely speculative character as to the possible future results of plaintiff's injuries and charging the jury that they might

no power to contract for the association. They are but collectors of assessments under prescribed rules. An officer of a grand lodge receives payments from a subordinate lodge and, if he happens to know that some of these payments came from unauthorized sources, he has no power to do anything about it, and certainly any receipt by the collecting officer of a subordinate lodge should not bind the society.

INSURANCE-ESTOPPEL AGAINST FRATERNAL COMPANY IN RECEIVING ASSESSMENTS FROM NON-ELIGIBLE MEMBER. The Supreme Court of Nebraska holds that if one is admitted to membership in a fraternal order by misrepresenting his occupation the receipt of assessments for years afterwards with the knowledge of its officers that he is following a prohibited occupation does not estop the order from setting up the fact of ineligibility. Krecek v. Supreme Lodge of Fraternal Union of America, 145 N. W. 859, majority opinion.

The court said: "When the constitution of one of these societies provides in unmistakable terms that a person engaged in a certain business cannot become a member of the society and that the payment by him of any dues and assessments thereafter shall not have the effect of waiving such forfeiture, the society cannot be made liable by estoppel or waiver. The rule is well settled that no one can gain anything by estoppel or waiver that he could not have gained by affirmative action or contract."

A dissent, which goes purely on the court being bound by prior decision, says: "It may well be suggested that the association being mutual and each policy holder being in a sense a partner with all others, their solemn agreement among themselves that they shall not be liable to contribute to the beneficiary of a convict in the penitentiary, or the keeper of a public saloon, should be respected and ought not to be considered waived by receiving and appropriating dues paid by insured, when their contract expressly provides that the receipt of such dues shall not constitute such waiver."

These fraternal societies are composed of members who are partners inter sese and the officers are but ministerial agents appointed to represent them-not represent the association. Under this theory notice to them is not notice to the association, at least so far as their ministerial duties are concerned. They have

ATTACHMENT-LIABILITY OF AN AMBASSADOR TO WRIT AS NON-RESIDENT.— The Supreme Court of Pennsylvania holds: "That foreign attachment lies against a nonresident whose domicile is within the state applies to an ambassador residing at a foreign court." Raymond v. Leishman, 89 Atl. 791. The court says: "It is true he acquires no new domicile in the country to which he is accredited, but he actually resides and during such residence he is not amenable to the process of the courts of that country. * * During his residence abroad he is immune from both civil and criminal process in the courts of the country to which he is sent, and, if he cannot be held in the courts of his domicile or where his property may be found, he is beyond the reach of the process of any court to which his creditors may apply to enforce their claims. The consequences of such a doctrine are a sufficient refutation of its soundness."

It is argued that "residence" and "domicile" are not convertible terms, domicile being defined to be the place where a man has his fixed and permanent home and residence is, according to the context and purpose of a statute, and under attachment statutes generally, a place which casual or temporary absence does not destroy. Yet by protracted absence so that the ordinary process of a court cannot reach one, he may cease to be a resident and become subject to attachment. That this protracted absence arises under ambassadorial duty would seem not to present any exception to the operation of such a rule.

E contra it is said in Minor on Conflict of Laws, section 20, that the legal residence and domicile of a foreign minister are in his own country, this being a fiction of extraterritoriality. But this does not necessarily govern, in attachment statutes which considers absence from a place of abode in the state of residence, a situation that mere fiction cannot cover. In cases of ordinary citizens it has been held that a protracted absence of nine months may change the residence but not the domicile. Long v. Ryan, 30 Gratt. 718.