nlism smrm. 27
East, P. C. 135. It is to be understood, of course, that the convic-
tion or punishment in any of these cases took place only when the
refusal to plead was willful. If it was through defect of understand-
ing, the defendant was remanded; and this preliminary point was ·
tried by the jury. See Rea: v. Pritchard, 7 Car. & P. 303; Reg. v.
Berry, L. B. 1 Q. B. Div. 447; Com. v. Braley, 1 Mass. 103 ; Same v. Hdl,
14 Mass. 207; Dyott v. Com. 5 Whart. 67; U.S. v. Hare, 2 pWheeler,
O. C. 283. . Congress in the nrst crimes act, passed in 1790, adopted the —
humane rule that in all capital cases defined by that act standing mute
should be equivalent to a plea of not guilty. This was followed by Penn-
sylvania in 1791; by Massachusetts in 1795; by Maryland in 1807.
It is now the law, so far as I know, in all the United States and in Eng-
land not only in felony, but inevery grade of crime. But it has been
applied in cases not capital since our constitution was adopted. The
law of Massachusetts in 1789 and until 1836 was that a defendant
charged only with a misdemeanor, who willfully and intelligently
stood mute, was to be dealt with as if he had pleaded guilty.
Com. v. Moore, 9 Mass. 402. This, therefore, was the law of this
district. U. S. v. Reid, 12 How. 361. The alternative, then, is
simple. Either the defendant was properly dealt with under Bev.
St. § 1031, as one indicted; or, being already convicted by his own
confession, he has no ground to complain that a second chance of ·
escape was given him by the judge in ordering a trial by jury.
Ellenwood v. Com. 10 Metc. 222. Indeed, the trial in this view was
rather an inquiry than a trial, and,`being a matter of grace, might
have been by either court or jury without vitiating the proceedings.
It is admitted that the refusal to plead was willful and intelligent, by
advice of counsel, and therefore there was no occasion to try the pre- · _ ·
liminary question of sanity. j _
It follows that the entry must be, Petition denied. _