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cr, person, guilty, court and mute

ARRAIGNMENT. Calling the defendant to the bar of the court, to answer the accu sation contained in the indictment.

The ,drat step in -the proceeding consists in calling the defendant to the bar by his name, and commanding him to hold up his hand.

This is done for the purpose of completely iden tifying the prisoner as the person named in the indictment. The holding up his hand is not, how ever, indispensable ; for if the prisoner should re fuse to do so, he may be identified by any admission that he is the person intended; 1 W. Bla. 33. See Archb. Cr. Pl. 128.

The second step is the reading the indict ment to the accused person.

This Is done to enable him fully to understand the charge to be produced against him. The mode in which it is read is, after saying, "A B, hold up your hand," to proceed, "you stand indicted by the name of A B, late of, etc., for that you, on, etc.," and then go through the whole of the indictment.

The third step is to ask the prisoner, "How say you (A B), are you guilty, or not guilty?" Upon this, if the prisoner confesses the charge, and it appears to the satisfaction of the judge that he rightly comprehends the effect of his plea, the confession is recorded, and nothing further is done till judgment. If, on the contrary, he answers, "Not guilty," that plea is entered for him, and the clerk or attorney-general replies that he is guilty; when an issue is formed; Com. v: Battis, 1 Mass. 85; see 4 Bla. Com. c. xxv. The holding up of the hand is no longer obligatory in England, though still maintained in some of the United States with the qualification that if the defendant refuses to hold up his hand, but confesses that he is the per son named, it is enough; Whart. Cr. Pl. & Pr. (9th ed.) § 699. In cases where arraignment of the de

fendant is required, a failure to arraign is fatal; Graeter v. State, 54 Ind. 159 ; Grigg v. People, 31 Mich. 471; Anderson v. State, 3 Pinn. (Wis.) 367;• Smith v. State, 1 Tex. App. 408; People v. Gaines, 52 Cal. 480. See, State v. Cassady, 12 Kan. 550. In cases of a mistrial (Hayes v. State, 58 Ga. 35), or removal to another court (Davis v. State, 39 Md. 355), there need not be a fresh! arraignment. If the defendant, when called upon, makes no an swer, and it is a matter of doubt whether or not he is mute of malice, the court may direct a jury to be forthwith impanelled and sworn, to try whether the prisoner is mute of malice or ex visitatione Dei; and such jury may consist of any twelve men who may happen to be present. If a person is found to be mute ex visitations Dei, the court in its discre tion will use such means as may be sufficient to en able the defendant to understand the charge and make his answer; and if this is found impracti cable, a plea of not guilty will be entered, and the trial proceed. But if the jury return a verdict that he is mute fraudulently and willfully, the court will pass sentence as upon a conviction; Ellenwood v. Cora., 10 Mete. (Mass.) 222; Archb. Cr. Pl. 129; 3 C. & K. 121; Rose. Cr. Ev. (8th ed.) 199. See the case of a deaf person who could not be induced to plead; 1 Leach, Cr. Cas. 451; of a person deaf and dumb; id. 102; Com. v. Hill, 14 Mass. 207; 7 C. & P. 503; 6 Cox, Cr. Cas. 386 ; 3 C. & K. 328 ; State v. Draper, 1 Houst. Del. Cr. Cas. 291. See DEAF AND DUMB; GUILTY; GOD AND MY COUNTRY; MUTE ; PEINE FORTE ET DURE.