Shoffner v. State

93 Ind. 519, 1883 Ind. LEXIS 39

• Court: Indiana Supreme Court
• Decided: September 18, 1883
• Docket: No. 10,976
• Status: Published

Opinions

Nibeack, C. J.

— This was a criminal prosecution, upon affidavit and information, under section 2039, R. S. 1881, for suffering a county poor-house to become foul and unclean.

, The record of the proceedings in the court below, as recorded by the clerk, notes the appearance of the prosecuting attorney for the State, and of the defendant in person, and states that the defendant, Tetmany Shoffner, moved to quash the information; that the motion was overruled, whereupon the defendant waived an arraignment and pleaded not guilty; that a trial by a jury resulted in a verdict of guilty, assessing the fine at twenty-five dollars; that the court, after considering and overruling a motion in arrest of judgment, rendered judgment on the verdict.

The day after the trial, and before the record of the proceedings, entered as above by the clerk, was signed by the judge, the defendant moved to correct the entry of the proceedings 'in respect to the alleged waiver of arraignment, and entering a plea to the information, charging that the information was only read in his hearing when the motion to quash it was made, and that he did not in fact either waive an arraignment, or enter a plea of any kind to the information ; but the court, conceding that there had been no formal waiver of arraignment or entry of a plea of not guilty, overruled the motion to correct the proceedings, as recorded by the clerk, upon the ground that the defendant had gone to trial without objection as upon a plea of not guilty, and that he had had the full benefit of that plea at the trial.

The defendant appealing has assigned error upon these last named proceedings, and asks a reversal of the judgment because his motion was not sustained.

It is true, as contended, that a trial without an issue is erroneous. It is also true that a trial upon an indictment, or information, without a plea, constitutes such an irregularity in the proceedings as entitles the defendant to a new trial if the verdict is against him, or, at his option, to have the verdict set aside as contrary to’ law, but advantage can only be taken of such a defect in the proceedings by a motion for a new trial. R. S. 1881, sec. 1842; Tindall v. State, 71 Ind. 314.

A motion in arrest of judgment goes only to the jurisdiction of the court, or to the sufficiency of the indictment or information. R. S. 1881, section 1843.

In this case there was no motion for a new trial. Consequently, no question was reserved in the court below upon the non-waiver of an arraignment, or upon the failure of the court to require a plea to the information.

Filed Sept. 18, 1883.

The motion of the appellant to have the minutes of the court corrected, after the cause had been disposed of upon its merits, raised no question for review here. So long as there was no motion to set aside the verdict on account of some defect in that respect, it was quite immaterial whether or not a plea to the information was in fact entered.

The judgment is affirmed, with costs.