180 SUPREME COURT OF ARKANSAS, [39 Ark. Baker v. State of Arkansas. BAKER V. STATE OF ARKANSAS.- 1. CRIMINAL PRACTICE : Arraignment: Num- pro tunc order. A nunc pro tunc order in a criminal case after trial, showing that the accused was arraigned before trial, can not be made in the absence of the prisoner, and the record must af firmatively show his presence; otherwise, the case will be treated in the Supreme Court as if he was tried without plea, and be reversed. 3. SAME : Entry showing grand jury sworn. The record-entry of the swearing of the grand jury mnst show that all of them, as well as the foreman, were sworn; otherwise, the judgment of conviction will be reversed; and, upon return of the case tO the Circuit Court, unless a nunc pro tune order that all were sworn can be truthfully made, the prisoner may be held to answer a new indictment. ' APPEAL from Mississippi Circuit Court. lion. L. L. MACK, Circuit Judge. Attorney-General Moore, for the State. ENGLISH, C. J. At the MaY term, 1882, of the Circuit Court of Mississippi County, Jeff Baker was indicted for an assault with intent to Commit murder ; tried; found gnilty, and sentenced to the penitentiary for three years. A new trial was refUsed, and he took a bill of exceptions, and prayed an appeal, which was allowed by one of the judges of this court. The transcript presented on the application- for • an appeal, . and filed after its allowance, failed to show any aridighnient or plea of • the ,prisoner. - On -a suggestion; by the Attorney-General, of a dimunition in the record, a certiorari W.as issued to the clerk below, upon which he returned a mere statement that before trial at the May term, 1882, the prisoner waived a formal arraignment, and, entered the plea of
39 Ark.] NOVEMBEIi TERM, 1882. 181 Baker v. State of Arkansa;.. not guilty, but that he (the clerk) had failed to include these: facts in the record-entry of the trial. An alias certiorari was issued, upon which the clerk returned a transcript of a nunc pro tune entry, made at the November term, 1882, of the court below, showing that the prisoner waived formal arraignment, and entered the plea of not guilty, before trial, at the May term; 1882. Upon the original transcript, and the transcript Of the amended record so returned, the case was submitted. The transcript of the amended record fails to show that the prisoner was present in court when the num pro tunc entry was ordered to be made. If the prisoner. was present in cuurt when. the order for the entry was made, the record should have shown that fact; if not present, the order should not have been made until he was brought into court, and afforded the privilege ol being heard by himself and cOunsel in so grave a matter. Binns r. The State, 35 Ark., 118. In a case 'involving life Or liberty;' such an -entry,. made in the . abSence of the prisoner, can not be treated as yalid-The case must, therefore, be treated as if -the priSoner -was tried without plea, •which is canse- for the reversal •of the judgment. (Lacefield v. The State, 34 Ark.; 'lloreoVer, the entry, as copied --in thd• oiiginal traiiscript, ...shOWing impanelhig .of . the grand jmv whiCb .. .foiii4 the indictment, shows That a foreMan was. apPointed, , : and s.worli, but, ; fails to show as • •it- .should ...have • • done; that bis ..felloWs 'were sworn. The judgment. Must, for the, etrOiS 'aboye • iridmated,'be reverSed, and the cause • renianded. If it can be shown to the satisfaction,: of:J tbe..;-court that . all of the grand jurors were in fact sworn, the defect in the record mav be..amerided by. A ntu:rtc pr9 t,virbe . ,, try. and the prisoner may be arraigned, and required te plead w
182 SUPREME COURT OF ARKANSAS, [39 Ark. the indictment. But if it should be found that such nunc pro tune entry can not be truthfully made, the prisoner may be held to answei a new indictment. Upon the transcript now before us, we do not deem it proper to express any opinion as to the sufficiency of the evidence to warrant the verdict, nor as to the ruling of the court upon instructions..
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.