Ayala v. State

Sybert, J., delivered the opinion of the Court. Appellant, Bernardo V. Ayala, was arrested on November 11, 1960 and subsequently charged with assault to commit ⁴⁹⁰ murder and with assault and battery upon Carole Viera, a woman to whom he was not married but who had ,been living with him for about a year. The arrest arose from an incident which occurred on October 21, 1960, the details of which it is unnecessary to set out since the sufficiency of the evidence has not been questioned. On the date set for Ayala’s arraignment, December 13, 1960, appearance was made by counsel of his own selection.

Ayala, who had posted bail, was not present in court and his counsel stated he was not prepared for the arraignment. However, the record shows that appellant’s counsel did receive a copy of the indictment on the same day and the arraignment was tentatively set for the following day. No further mention of arraignment or other proceedings appears on the record until December 20, 1960, the day of appellant’s trial, when a docket entry records that appellant was arraigned and entered a plea of not guilty. However, the transcript of proceedings on that date reveals no formal arraignment, but prior to the actual trial of the case the following colloquy between the clerk of court and defense counsel appears on the record: “(The Clerk) Bernardo V. Ayala.

Mr. Stern. Mr. Stern, are you familiar with this indictment? (Mr. Stern) Yes, I am. (The Clerk) What is the plea?

(Mr. Stern) The plea is not guilty, court trial. (The Clerk) Not guilty, court trial in No. 4501.” Ayala was thereupon tried by the court sitting without a jury and was found guilty of assault and battery under the second count of the indictment and sentenced to confinement in the House of Correction for a period of three years. In appealing the judgment and sentence the appellant, through court-appointed counsel other than his trial counsel, makes the following contentions: “1. The right of arraignment involves the substantive rights of the Appellant and is guaranteed by Maryland Procedure Rule 723 (c) to all defendants charged with criminal offenses. ⁴⁹¹ “2.

The record does not show affirmatively that Appellant was arraigned, nor does there appear to have been substantial compliance with the requirements of Rule 723 (a). “3. The failure to arraign the Appellant so prejudiced him that his conviction should be reversed.” We agree that the right of arraignment involves a substantial right of the appellant, Basta v. State, 133 Md. 568 , 105 Atl. 773 (1919), and that under Maryland Rule 723 a and c, 1 “one or the other of the present arraignment procedures prescribed by the rule ought to be practiced in all criminal cases,” Gouker v. State, 224 Md. 524, 528-9 , 168 A. 2d 521 (1961), whether the offense charged be a felony or a misdemeanor. The essential inquiry therefore narrows itself to the second point raised by appellant, i.e., that the record fails to show affirmatively that a formal arraignment ever took place, or, in the alternative, a substantial compliance with the requirement for an arraignment under Rule 723 a. While Rule 723 c requires that the record shall affirmatively show compliance with the requirement for an arraignment, it has been established that this Court will not resort to fine technicalities and reverse a conviction “simply because the record does not show positively that the appellant actually had been formally arraigned or informed of the substance of the charge.” Gouker v. State, supra, at p. 527.

The authori ⁴⁹² ties are in general agreement that the formalities once observed upon arraignment are no longer required. It is sufficient if it appears that what has been done amounts in substance to an arraignment. 4 Wharton, Criminal Law and Procedure, § 1805; 14 Ain. Jur., Criminal Law, § 252; 22 C.J.S., Criminal Law, § 411(1). We conclude that the record in the case