¶1The following are the assignments of error:
¶21. The court erred in overruling the motion of the plaintiff in error in arrest of judgment against him, there being no legal arraignment and plea.
¶32. The court erred in going to trial without a legal arraignment and plea by plaintiff in error.
¶43. The court erred in-not setting aside the judgment for want of a legal plea.
¶5The recital in the record shows that. “ this day came the district attorney, for and on behalf of the state, and the defendant appeared here in court, according to the tenor of his recognizance ; and by his attorney waiving a formal arraignment of the premises, pleads not guilty as charged in the indictment,” &c.
¶6Our code provides “ that if the defendant, on arraignment, refuses or neglects to plead, or stands mute, the court must cause the plea of ‘ not guilty ’ to bo entered, and proceed to trial.” Rev. Code, p. 620, art. 293.
¶7The simple question is raised by this record whether a person charged with the commission of a felony can waive his arraignment and -plead by attorney. The defendant cannot waive his arraignment, nor can he plead by attorney. The plea by attorney is no plea. Bishop on Criminal Procedure, § 684; McQuillen v. The State, 8 S. & M., 595 Chitty’s C. L., 418; Douglas *1584v. The State, 3 Wisconsin, 820. Where tbe crime charged reaches the grade of felony, the authorities are clear that tbe accused must be arraigned and plead in person, unless be stands mute, or refuses or neglects to plead, in which event the “ cmcrt must cause tbe plea of ‘ not guilty ’ to be entered, and proceed with the trial.”
¶8It does not appear from the record that the defendant stood mute, refused, or neglected to plead. The record not only fails to show that the defendant was arraigned, but it appears affirmatively that the defendant was not arraigned; that his arraignment was toaived, not by himself, but by his attorney. What the defendant could not do in his own proper person, certainly could not be done by his attorney. We are of opinion, therefore, that the judgment and sentence of the court below should be reversed, the cause remanded, and a new trial awarded.