Knapp v. State
| Decision Date | 24 June 1932 |
| Docket Number | 26,154 |
| Citation | 181 N.E. 517,203 Ind. 610 |
| Parties | Knapp v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Arraignment---Trial without Arraignment not Reversible Error---Exception.---Since the amendment of 197 of the Criminal Code (2232 Burns 1926) in 1927 (Acts 1927, ch 132, 9, p. 416, 2232 Burns Supp. 1929), a trial without arraignment is not reversible error "unless the record shows that the defendant, before the trial, objected to entering upon the trial for lack of such arraignment." p. 612.
2. CRIMINAL LAW---Constitutionality of Statute on which Prosecution Based---How Raised.---The constitutionality of the statute on which a criminal prosecution is based must be raised either by a motion to quash or by a motion in arrest of judgment. It cannot be questioned by a motion for a new trial. p. 613.
3. CRIMINAL LAW---Appeal---For Insufficiency of Evidence---Appellant has Burden of Pointing Out Insufficiency.---One who appeals from a judgment of conviction has the burden of pointing out the insufficiency of the evidence to sustain the conviction. It is not incumbent on the court to search the record to ascertain whether each material element of the crime has been supported by some evidence. p. 614.
4. APPEALS---Jurisdiction of Supreme Court---Limited to Errors of Law---Cannot Pass upon Questions of Fact.---The jurisdiction of the Supreme Court on appeal is limited to errors of law only, and it has no jurisdiction to pass upon questions of fact. p. 615.
5. INDICTMENT AND AFFIDAVIT---Insufficiency of Affidavit---Prosecutor's Failure to Indorse his Approval---Subject to Motion to Quash---But Defect Waived by not Moving to Quash.---The failure of the prosecuting attorney to endorse his approval on an affidavit filed by him, as required by 2151 Burns 1926, renders the affidavit insufficient on a motion to quash, but the defect is waived by not presenting it to the trial court by a motion to quash p. 615.
6. CRIMINAL LAW---Affidavit Charging Crime---Failure of Prosecutor to Indorse Approval Thereon---Defect Waived.---The prosecuting attorney's failure to indorse his approval on an affidavit before filing constitutes a fatal defect, but it is waived by not raising the objection in the court below. p 615.
From Vermillion Circuit Court; William C. Wait, Judge.
Laverne Knapp was convicted of arson in the second degree, and he appealed.
Affirmed.
J. M. Johns and J. R. Cauble, for appellant.
James M. Ogden, Attorney-General, and James T. Dowling, Deputy Attorney-General, for the State.
Appellant was charged by affidavit in two counts filed in the Vermillion Circuit Court, charging first and second degree arson. §§ 2441, 2442 Burns Supp. 1929, Acts 1927 p. 122.
Appellant was arraigned on the first count of the affidavit which charged arson in the first degree on July 24, 1931, and entered a plea of not guilty. Subsequently, on October 14, 1931, the second count of the affidavit, which charged arson in the second degree, was filed. Appellant went to trial on October 14, 1931, without being arraigned or without a plea being entered as to the said second count of the affidavit.
There was a trial by the court without the intervention of a jury and a finding of guilty as charged in the second count of the affidavit. Judgment was entered on the finding, and appellant was sentenced to the Indiana reformatory for a period of from one to 10 years.
Appellant filed his motion for a new trial, which was overruled, and hence this appeal.
Appellant in his motion for a new trial assigns error: (1) The finding of the court is contrary to law; (2) the finding of the court is not sustained by sufficient evidence; (3) the finding of the court is not sustained by the evidence; (4) the affidavit on which defendant was tried is not sufficient to sustain the finding of the court.
The only error assigned here is the overruling of his motion for a new trial.
Appellant contends under his first reason for a new trial that, as he was found guilty on the second count of the affidavit, and that the record shows that he was not arraigned and entered no plea to the charge, therefore no issue was formed upon which a trial could be had, and for that reason this case should be reversed.
With this contention we cannot agree. The last clause of § 9, ch. 132, Acts 1927 p. 417, § 2232 Burns Supp. 1929 provides: "Any conviction shall not be invalidated by failure of the record to show an arraignment and plea or either of them, unless the record shall show that the defendant before the trial objected to entering upon the trial for lack of such arraignment or plea."
The question thus presented by appellant was before this court in the case of Tokacs v. State (1930), 202 Ind. 259, 173 N.E. 453, and it was there said:
The case of Lee v. State (1929), 90 Ind.App. 43, 167 N.E. 543, is also in harmony with the above holding.
Appellant cites several authorities in support of his contention, but on examination of them discloses that they were decided under the act of 1905, prior to its amendment in 1927.
Appellant urges that, if the above statute is applicable to the question as presented by the record in this case, then the act is unconstitutional and void.
The constitutionality of a statute must be raised either by a motion to quash or by a motion in arrest, and not by motion for a new trial. In the recent case of Ellwanger v State (1932), ante 307, 180 N.E. 287, the court said: ...
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