APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded for new trial.
Mr. R. H. Brumback and Mr. E. B. Goodwin, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Riney B. Salmon, Assistant Attorney General, and Mr. George T. Wilson, County Attorney, for the State.
[37 Ariz. 401] LOCKWOOD, C. J.
Orville Pruitt, hereinafter called appellant, was informed against by the county attorney of Maricopa county for the crime of robbery. He was duly convicted by a jury and sentenced to a term of imprisonment in the state prison, and from the verdict and judgment entered he has appealed.
There are five assignments of error, but we need consider only the first two. They are, in substance, an attack upon the action of the trial court in giving the following instruction:
"Under the evidence in this case, however, gentlemen, and under the admission of counsel in their address to you, the court instructs you that it will be your duty to either find this defendant guilty of robbery or of an attempt to rob, and I shall, therefore, not submit to you for your consideration the question of his being not guilty, it being admitted by counsel in his argument that the defendant was guilty of an attempt to rob."
Section 5016, Revised Code of Arizona 1928, reads as follows:
[37 Ariz. 402] "5016. Plea of guilty, personal plea; withdrawal. A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment or information against a corporation, in which case it may be put in by counsel. The court may, at any time before judgment, permit a plea of guilty to be withdrawn, and a plea of not guilty substituted."
In construing a similar statute the Supreme Court of California, in the case of People v. McCrory, 41 Cal. 458, has held that a plea of guilty can only be entered by the express consent of the defendant, given by him personally in direct terms in open court. In the case at bar the only plea ever entered by appellant was one of not guilty. Section 5017, Revised Code of Arizona 1928, is as follows:
"5017. Issue and evidence on plea of not guilty. The plea of not guilty puts in issue every material allegation of the indictment or information, and all matters of fact tending to establish a defense, other than that of former conviction or acquittal or former jeopardy, may be given in evidence under the plea of not guilty."
It thus appears that appellant by a formal plea made the issue of his guilt or innocence one of fact. Nor can the attorney for defendant admit away his life or liberty in the face of a plea of not guilty. People v. Thompson, 4 Cal. 238.
Section 12, article 6, Constitution of Arizona, reads in part as follows:
"Judges shall not charge juries with respect to matters of facts nor comment thereon, but shall ...