The Court was right in ordering the plea of not guilty to be entered for the defendant.

         Section three hundred and eight of the Criminal Practice Act authorizes this proceeding. The construction of it is that if the defendant refuse to answer the indictment by demurrer, and if that be overruled, by a plea, then the Court should enter a plea of not guilty.

         If section two hundred and ninety-six be unconstitutional, as appellant's counsel seem to think, on the ground, doubtless, that the defendant is entitled to a trial by jury, and that standing mute is not a confessionof guilt (as to which point see the case of United States v. Hare, 2 Wheel. Cr. Cas. 299), then it is the duty of that Court to pass upon the question of constitutionality, and if it decided rightly, it is not making a law, but declaring what the law is. Suppose the Court below had passed judgment as on a plea of guilty upon the overruling of the demurrer, and the defendant had appealed, and the Supreme Court had decided that that section was unconstitutional in not giving the defendant a trial by jury, then upon a new trial of the case the defendant should still stand mute, is there no provision anywhere that he may be tried at all? The legitimate result of such a construction would be that every defendant who thought that the Commonwealth could show him to be guilty, would simply demur to the indictment on some frivolous ground, and the demurrer being overruled, would refuse to plead.

         The Criminal Practice Act can receive no such absurd construction; and if the defendant is to be tried at all, he could not be tried upon a more favorable plea than that of not guilty (see Sec. 303 of the Cr. Pr. Act), and therefore the defendant could not have been prejudiced in any substantialright by the action of the Court below. (Cr. Pr. Act, Secs. 247, 601.)

         JUDGES: Sanderson, C. J.

         OPINION

          SANDERSON, Judge

         I. The defendant was indicted for the crime of grand larceny. A demurrer was interposed to the indictment, which was overruled by the Court. Thereafter, when called upon to plead to the indictment, the defendant, acting under the advice of his counsel, declined to do so, and refused to put in any plea whatever. Thereupon the Court, of its own motion, ordered the Clerk to enter a plea of not guilty, to which counsel for the defendant objected and demanded that the Court should proceed in the manner designated in the two hundred and ninety-sixth section of the Criminal Practice Act and pronounce judgment against the defendant. This the Court declined to do, and directed the plea of not guilty to be entered, upon which the defendant was thereafter tried and convicted. This action and ruling of the Court is assigned as error.

         The two hundred and ninety-sixth section is in these words: " If the demurrer be disallowed the Court shall permit the defendant at his election to plead, which he must do forthwith, or at such time as the Court may allow; if he do not plead, judgment shall be pronounced against him."

         It is presumed that the course taken by counsel was adopted under the notion that the foregoing section in some way interfered with the right of trial by jury guaranteed to the defendant by the Constitution, and was therefore void. Otherwise he would hardly have failed to have availed himself of the chances for his client's escape afforded by that uncertainty which is sometimes supposed to attend the verdict of a jury. The Court below seems to have come to the conclusion that the question was at least doubtful, and therefore gave the defendant the benefit of the doubt and afforded him an opportunity to enjoy his constitutional right of trial by jury, notwithstanding the earnest protest of counsel.

         It is insisted on behalf of defendant that the constitutionality of section two hundred and ninety-six is not involved in this case, and counsel decline to argue it, claiming that it will be in time to discuss that question when we meet with a judgment which has been rendered in accordance with its provisions, and that the only question presented by the record in this case arises upon the power of the Court to enter a plea of not guilty under section three hundred and eight. But the point made, in our judgment, does involve a discussion of that section. The two hundred and ninety-sixth and the three hundred and eighth sections both relate to the same subject-matter, and are to be read together. The latter section provides that: " If the defendant refuses to answer the indictment by demurrer or plea, a plea of not guilty shall be entered." Reading it, therefore, in connection with the former section, we have a complete rule for every case where the defendant when called upon to plead stands mute, or, as in the present case, orally refuses to plead. If, when arraigned, he stands mute or refuses to demur or plead to the indictment, a plea of not guilty is to be entered for him; but if he demurs, and his demurrer is disallowed, he may plead or not, at his option, and if he stands mute or fail or refuse to plead, the Court is to proceed as upon a conviction or a plea of guilty, and pronounce its judgment accordingly. Such is the plain rule of conduct as prescribed by the statute. Is there any constitutional objection to it? By such a rule is the defendant denied any constitutional right or privilege? If so, we have been unable to discover it, and counsel for appellant has failed to suggest wherein the statute conflicts with the Constitution. The only clause of the Constitution to which it can be claimed that the rule of the statute is repugnant, is that which provides that " The right of trial by jury shall be secured to all, and remain inviolate forever." This provision is designed for the protection and security of the citizen in his life, liberty and property, and to protect all three against the exercise of arbitrary power. Of the right thus solemnly secured to him, he cannot be deprived by any power under the Government. He may claim his right at all times and under all circumstances. But while the Legislature cannot destroy or in any degree impair his right, that body may provide the mode and manner of its enjoyment so far as the same may be done without prejudice to a fair and impartial trial in the manner pointed out and secured to him by the Constitution. The criminal law of the land must be enforced, or civil government is a failure, and the law of force becomes the rule of conduct. The intent of the Constitution is to secure every person charged with crime a fair and impartial trial by jury, but not to place it in his power to evade a trial altogether by standing mute and refusing to participate in it. In order that there may be a trial there must be an issue. If, by refusing to join issue, the accused may avoid a trial, he is thereby enabled to pervert a constitutional provision solely designed to secure to him a fair trial by a particular mode, but not to enable him by his own act to obstruct the course of justice and escape a trial altogether, into a shield against punishment for any crime which he may have committed.

         It is within the constitutional power of the Legislature to provide that the Court shall enter a plea for the defendant when he stands mute, or that such standing mute shall be taken as a confession of the truth of the indictment, and equivalent to a plea of guilty. Such a provision in no way deprives the defendant, or tends to deprive him of his constitutional right to a trial by jury. If, in the case provided for in section two hundred and ninety-six, no trial takes place, and the defendant is adjudged guilty without the verdict of a jury to that effect, and punished, such result is not attributable to the law, but to the willful obstinacy of the defendant. That section affords him an opportunity to be tried by jury, which is all that the Constitution exacts from the Legislature. If he chooses to stand upon his demurrer and fails or refuses to plead, he is no more entitled to a trial than he would be upon a plea of guilty; and it is presumed that no one will contend that the law providing for a plea of guilty is repugnant to the constitutional provision in question.

         From what has been said it follows that the Court could have lawfully pronounced judgment in the case as provided in the two hundred and ninety-sixth section, and ought to have done so, and that the Court erred in adopting the course which it did. But the consequence for which counsel for the defendant contend does not follow. This Court is not allowed to reverse a judgment where it is manifest that the error alleged has in no manner operated to the legal prejudice of the defendant. The defendant has been deprived of no right, nor has he been placed in any worse position by the error of the Court in giving him a fair trial by jury notwithstanding his confession of guilt. The trial was a mere idle ceremony, which did him no legal harm, and therefore affords no ground for a reversal of the judgment.

         II. When the case was called for trial and before the examination of the jurors was commenced, counsel for defendant asked leave to withdraw the plea and to move to quash the indictment, because the names of all the witnesses who were examined before the Grand Jury were not indorsed upon it, and upon the further ground that the defendant himself had been examined before the Grand Jury touching the offense therein charged. It appears from the affidavits offered in support of this motion, that the defendant and one Louis Bergler, jointly indicted with him, were examined before the Grand Jury and their names were not indorsed upon the indictment. The motion was denied, and it is claimed that such denial was error.

         So far as the motion was based upon the ground that the defendant had testified against himself before the Grand Jury is concerned, it is only necessary to say that we know of no rule of law which made it illegal for him to testify if he felt inclined to do so, nor do we know of any rule of law which makes the voluntary testimony of the defendant before the Grand Jury a ground for setting aside the indictment.

         So far as the other ground is concerned, the motion came too late, as has been repeatedly decided. A motion to set aside an indictment upon this ground must be made before demurrer or plea (Cr. Pr. Act, Secs. 277, 278), and if not so made, the defendant is precluded from afterward taking the objection (Sec. 280). (People v. Freeland , 6 Cal. 98; People v. Lawrence , 21 Cal. 368; People v. Lopez , 26 Cal. 112.)

         III. It is lastly contended that the judgment is void for uncertainty. The judgment is, " that the defendant be imprisoned in the State Prison for the term of three years from the date of his incarceration," and it is claimed to be fatally uncertain as to the time when the term commences.

         It is true, as contended by counsel, that the judgment ought to be certain, both as to the commencement of the term and as to its termination, but this rule does not require greater certainty than is possible under the circumstances, and we think the judgment in this case is quite as certain as it can be made. The punishment is imprisonment in the State Prison for the term of three years. It is very clear that the term cannot commence until the defendant arrives at that place, and that it cannot end until three years thereafter. When he will arrive at the State Prison is certainly more or less uncertain, but that is not the fault of the judgment, and as the Court has no means by which it can ascertain with certainty the precise moment at which that event will happen, it would be asking more than the Court could perform to require it to fix the exact day, and more than any rule of law to which our attention has been called makes necessary.

         Judgment affirmed.