Vann, J.
The defendants were jointly indicted for conspiracy with intent to cheat and defraud, but after the indictment was moved for trial and before a jury was called, the defendant Temple withdrew his plea of not guilty and interposed the plea of guilty. The trial then.proceeded against the defendant Wiechers, and when the jury found him guilty a motion was made in his behalf for a new trial upon the ground that the verdict was against the weight of evidence and that the court erred in its rulings relating to evidence. The motion was denied and sentence of imprisonment for the period of nine months was imposed. No motion was made in arrest of judgment and the only appeal taken to the Appellate Division was from the judgment of conviction, which was affirmed, one of the justices not voting.
The evidence at the trial tended strongly to show that the defendant was guilty of the crime of conspiracy, and, hence,
the judgment against him should be affirmed, unless some error was committed by the trial court which affects a substantial right. Upon the record presented, with no motion made in arrest of judgment, we have nothing before us as a basis upon which to found error but the exceptions taken to the rulings of the court during the progress of the trial.
The defendant now seeks, through counsel who took no part in the trial, to attack the indictment upon the ground that the representations set forth therein do not refer to any existing fact capable of proof, but only to the belief of the defendants that they, or the mythical boy “Antonius” whom they personated, possessed certain magnetism sufficient to cure all bodily afflictions. There was much evidence, however, tending to show that the defendants represented not only that they or the pretended boy could cure nearly all known diseases by their peculiar methods, but also that they had actually done so. There was no defect in the evidence, but it is strenuously contended that there was a defect in the indictment which entitles the defendant to a reversal of the judgment against him.
An indictment cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. An accused person may take advantage of a defective indictment by demurring thereto before the trial, by objecting thereto during the trial, or by a motion in arrest of judgment made after the trial. The function of a demurrer, which was not resorted to by the defendant, is to defeat the indictment without a trial, whenever it appears upon the face thereof that it is subject to one or more of five objections named in the statute. (Code Crim. Proc. § 323.) These objection can be taken only by demurrer, “except that the objections to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” (Id. § 331; Peo
pie v. Mealcim, 133 N. Y. 214.) The statute does not provide how either of the two objections last named shall be taken, at the trial and, hence, the ordinary practice of raising the. question by objection and exception necessarily applies. A motion in arrest of judgment is mode after a plea of guilty, or after the trial has ended in a verdict of guilty, but no such motion was made in the case now before us. (Id. §. 467.) If a defendant with all these chances open to him omits to question the indictment before the trial, during the trial or after the trial and makes no objection to the form or sufficiency thereof until the argument of an appeal from the judgment of conviction, he cannot then be heard upon the subject. The indictment is the foundation for the prosecution of all serious crimes and it may be challenged from the time of arraignment until final judgment has been pronounced, but it cannot be attacked for the first time upon appeal, unless it is by an argument addressed to the discretion of the court hearing the appeal in the first instance, and that discretion does not belong to us except in capital cases.
Was any objection taken or question raised during the trial as to the indictment now before us ? We find none in the record. No challenge to the indictment was in terms presented during the trial. No claim was made that it was-defective in any way. No general objection was taken that evidence should not be received because the indictment did not charge a crime and no specific objection that certain evidence was inadmissible because the indictment was defective jn some respect. So far as appears, from the beginning to the end of the trial the indictment was not criticised or questioned in such a way that the trial court could know that an attack was made upon it. After the verdict was rendered, when a motion was made for a new trial, no claim was. asserted that the indictment was bad for any reason.
The only way in which it is now claimed that any question as to the indictment was brought to the attention of the
court was by the defendant’s motion at the close of the evidence for the People, and again at the close of all the evidence. All that the record shows in relation to these motions is as follows : “The defendant, Anton J. Wiechers, requests the court to advise the jury to render a verdict of not guilty upon the ground that the evidence does not warrant a conviction. 2. Upon the ground that the crime charged in the indictment has not been proven. Motion denied and exception.”
These motions challenged the evidence, not the indictment, and there was evidence to justify a conviction for the crime which the indictment purported to set forth. There was no claim that the indictment did not warrant a conviction, but that, to use the words of counsel when making the motion, “the crime charged in the indictment has not been proven.” Thus the motion instead of challenging the indictment because no crime was set forth, distinctly recognized that a crime was charged therein. The motion was made upon specific grounds which did not include, or necessarily involve, any objection to the indictment, and hence the trial court could not have understood that the indictment was questioned. It cannot be told from the record that any defect in the indictment was in the mind of counsel, or that he desired any ruling in relation thereto. The statute authorizes the objection that" the facts stated in the indictment do not constitute a crime, to be taken at the trial, but. no such objection was taken during the trial under review. ‘ ‘If a party calls upon the trial court to make a ruling in his favor, he must specify with reasonable clearness the point that he desires considered and decided, in order to predicate error upon an exception to the ruling against him. An exception taken during the progress of a trial is a protest against the ruling of the court upon a question of law. It is designed as a warning for the protection of the court so that it may reconsider its action, and for the. protection of the
opposing counsel so that he may consent to a reversal of the ruling. Unless the question of law upon which a ruling is sought is so stated that it is or should be understood, an exception is of no avail, because the exception is to the ruling as made and the ruling is upon the question as stated. ’ (Sterrett v. Third National Bank, 122 N. Y. 659, 662; Code Crim. Proc. § 455.)
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Vann, J.
The defendants were jointly indicted for conspiracy with intent to cheat and defraud, but after the indictment was moved for trial and before a jury was called, the defendant Temple withdrew his plea of not guilty and interposed the plea of guilty. The trial then.proceeded against the defendant Wiechers, and when the jury found him guilty a motion was made in his behalf for a new trial upon the ground that the verdict was against the weight of evidence and that the court erred in its rulings relating to evidence. The motion was denied and sentence of imprisonment for the period of nine months was imposed. No motion was made in arrest of judgment and the only appeal taken to the Appellate Division was from the judgment of conviction, which was affirmed, one of the justices not voting.
The evidence at the trial tended strongly to show that the defendant was guilty of the crime of conspiracy, and, hence,
the judgment against him should be affirmed, unless some error was committed by the trial court which affects a substantial right. Upon the record presented, with no motion made in arrest of judgment, we have nothing before us as a basis upon which to found error but the exceptions taken to the rulings of the court during the progress of the trial.
The defendant now seeks, through counsel who took no part in the trial, to attack the indictment upon the ground that the representations set forth therein do not refer to any existing fact capable of proof, but only to the belief of the defendants that they, or the mythical boy “Antonius” whom they personated, possessed certain magnetism sufficient to cure all bodily afflictions. There was much evidence, however, tending to show that the defendants represented not only that they or the pretended boy could cure nearly all known diseases by their peculiar methods, but also that they had actually done so. There was no defect in the evidence, but it is strenuously contended that there was a defect in the indictment which entitles the defendant to a reversal of the judgment against him.
An indictment cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. An accused person may take advantage of a defective indictment by demurring thereto before the trial, by objecting thereto during the trial, or by a motion in arrest of judgment made after the trial. The function of a demurrer, which was not resorted to by the defendant, is to defeat the indictment without a trial, whenever it appears upon the face thereof that it is subject to one or more of five objections named in the statute. (Code Crim. Proc. § 323.) These objection can be taken only by demurrer, “except that the objections to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” (Id. § 331; Peo
pie v. Mealcim, 133 N. Y. 214.) The statute does not provide how either of the two objections last named shall be taken, at the trial and, hence, the ordinary practice of raising the. question by objection and exception necessarily applies. A motion in arrest of judgment is mode after a plea of guilty, or after the trial has ended in a verdict of guilty, but no such motion was made in the case now before us. (Id. §. 467.) If a defendant with all these chances open to him omits to question the indictment before the trial, during the trial or after the trial and makes no objection to the form or sufficiency thereof until the argument of an appeal from the judgment of conviction, he cannot then be heard upon the subject. The indictment is the foundation for the prosecution of all serious crimes and it may be challenged from the time of arraignment until final judgment has been pronounced, but it cannot be attacked for the first time upon appeal, unless it is by an argument addressed to the discretion of the court hearing the appeal in the first instance, and that discretion does not belong to us except in capital cases.
Was any objection taken or question raised during the trial as to the indictment now before us ? We find none in the record. No challenge to the indictment was in terms presented during the trial. No claim was made that it was-defective in any way. No general objection was taken that evidence should not be received because the indictment did not charge a crime and no specific objection that certain evidence was inadmissible because the indictment was defective jn some respect. So far as appears, from the beginning to the end of the trial the indictment was not criticised or questioned in such a way that the trial court could know that an attack was made upon it. After the verdict was rendered, when a motion was made for a new trial, no claim was. asserted that the indictment was bad for any reason.
The only way in which it is now claimed that any question as to the indictment was brought to the attention of the
court was by the defendant’s motion at the close of the evidence for the People, and again at the close of all the evidence. All that the record shows in relation to these motions is as follows : “The defendant, Anton J. Wiechers, requests the court to advise the jury to render a verdict of not guilty upon the ground that the evidence does not warrant a conviction. 2. Upon the ground that the crime charged in the indictment has not been proven. Motion denied and exception.”
These motions challenged the evidence, not the indictment, and there was evidence to justify a conviction for the crime which the indictment purported to set forth. There was no claim that the indictment did not warrant a conviction, but that, to use the words of counsel when making the motion, “the crime charged in the indictment has not been proven.” Thus the motion instead of challenging the indictment because no crime was set forth, distinctly recognized that a crime was charged therein. The motion was made upon specific grounds which did not include, or necessarily involve, any objection to the indictment, and hence the trial court could not have understood that the indictment was questioned. It cannot be told from the record that any defect in the indictment was in the mind of counsel, or that he desired any ruling in relation thereto. The statute authorizes the objection that" the facts stated in the indictment do not constitute a crime, to be taken at the trial, but. no such objection was taken during the trial under review. ‘ ‘If a party calls upon the trial court to make a ruling in his favor, he must specify with reasonable clearness the point that he desires considered and decided, in order to predicate error upon an exception to the ruling against him. An exception taken during the progress of a trial is a protest against the ruling of the court upon a question of law. It is designed as a warning for the protection of the court so that it may reconsider its action, and for the. protection of the
opposing counsel so that he may consent to a reversal of the ruling. Unless the question of law upon which a ruling is sought is so stated that it is or should be understood, an exception is of no avail, because the exception is to the ruling as made and the ruling is upon the question as stated. ’ (Sterrett v. Third National Bank, 122 N. Y. 659, 662; Code Crim. Proc. § 455.)
We cannot consider the questions relating to the indict ment which were so ably argued before us, because they were not raised as authorized by statute, or by the practice of the courts, and, hence, were in effect waived. (People v. Tower. 135 N. Y. 457; People v. Formosa, 131 N. Y. 478, 481.) A practice act like the Code of Criminal Procedure would complicate rather than simplify the practice, if it were held that an indictment could be successfully attacked for the first time after judgment and upon appeal, when the evidence was sufficient to warrant a conviction for the crime purporting to be charged but which it is claimed was not sufficiently charged. Even if the indictment is not strong enough to withstand a direct attack in the manner provided by law, the judgment entered thereon would, be good as a plea in bar to another prosecution for the offense which was at least colorably charged and was clearly proved. Both at common law and by statute a verdict cures such imperfections of form in an indictment as do not tend to prejudice substantial rights upon the merits. (Code Crim. Proc. § 285; 1 Bishop Cr. Proc. § 707a.)
While the argument of the counsel for the appellant was substantially confined to the exceptions taken to the denial of the motions to advise an acquittal, we have read the record with care and have considered every objection made and exception taken during the trial, but we find none that should disturb the verdict. The judgment, therefore, should be affirmed.