Knapp v. State, 26154.

• Decision Date: 24 June 1932
• Docket Number: No. 26154.,26154.
• Citation: 203 Ind. 610,181 N.E. 517
• Parties: KNAPP v. STATE.
• Court: Indiana Supreme Court

203 Ind. 610

181 N.E. 517

KNAPP

v.STATE.

No. 26154.

Supreme Court of Indiana.

June 24, 1932.

Appeal from Vermillion Circuit Court; Wm. C. Wait, Judge.

Laverne Knapp was convicted of arson in the second degree, and he appeals.

Affirmed.J. R. Cauble and J. M. Johns, both of Rockville, for appellant.

James M. Ogden, Atty. Gen., and James T. Dowling, Dep. Atty. Gen., for the State.

ROLL, C. J.

Appellant was charged by affidavit in two counts filed in the Vermillion circuit court, charging first and second degree arson. Sections 2441, 2442, Burns' Ann. St. Supp. 1929, Acts 1927, pp. 122, 123, c. 44, §§ 1, 2.

Appellant was arraigned on the first count of the affidavit which charged arson in the first degree on the 24th day of July, 1931, and entered a plea of not guilty. Subsequently on the 14th day of October, 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 ten 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.

[1] 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 section 9, chapter 132, Acts 1927, pp. 416, 417, section 2232, Burns' Ann. St. 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, 454, and it was there said: “Prior to the time of taking effect of chapter 132, Acts 1927, p. 411, § 9, amending section 197 of the Acts of 1905, p. 584, c. 169 (Burns' 1926, § 2232), the failure of a defendant to enter a plea to an indictment or affidavit, or if he stand mute and no plea is entered for him by the court, was a sufficient showing requiring the court to grant a new trial; but the act of 1927 changed the law by providing that: ‘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.’ There is no showing in the record at bar that the defendant objected to a trial without being arraigned or pleading to the indictment. Hence appellant's contention based on want of a plea is not well taken.”

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 an 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.

[2] 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 (Ind. Sup. 1932) 180 N. E. 287, 289, the court said: “This phrase [meaning contrary to law], as used in the statute, we interpret as meaning contrary to the principles of law as applied to the facts or issues which the jury were called upon to try. *** At most, it cannot be extended to include matters not proper to be considered in support of the motion for a new trial, nor to embrace any of the other distinct and separate grounds of the motion which are specified in the act.”

The method adopted by appellant to present his alleged constitutional question cannot be approved. There was no motion to quash nor motion in arrest of judgment, and therefore upon the record here submitted that question is not before us.

[3] Appellant by his second reason for a new trial questions the sufficiency of the evidence to sustain the finding of the court. In his brief he does not point out any deficiency in the evidence to sustain any of the material facts necessary to the finding. This was a duty resting upon appellant to sustain such an alleged error. It is not...