¶1The appellant in this case was indicted in the criminal court of the city of Marshall, at the October term, A. D. 1875, for the murder of one Henry, whose surname was to the grand jury unknown. He was tried and convicted of murder in the second degree, with his punishment affixed at thirty-two years’ confinement to hard labor in the state penitentiary.
¶2The judgment will have to b.e reversed because the record does not show that defendant was either arraigned or that he pleaded to the indictment. In a capital case, when the record fails to show that the accused was arraigned or that .he pleaded not guilty, the conviction will be set aside.. Want of arraignment and plea both cannot be considered as waived or cured by any proceedings had upon the trial. Early v. The State, 1 Texas Ct. of App. 248; Smith v. The State, 1 Texas Ct. of App. 408; and several other cases decided by this court since that term, in which the rule thus laid down is sustained and reaffirmed.
¶3The judgment of the lower court is reversed and the cause remanded for a new trial.
¶4Reversed and remanded.