Lee v. State

• Decision Date: 01 August 1929
• Docket Number: No. 13767.,13767.
• Citation: 90 Ind.App. 43,167 N.E. 543
• Parties: LEE v. STATE.
• Court: Indiana Appellate Court

90 Ind.App. 43

167 N.E. 543

LEE

v.STATE.

No. 13767.

Appellate Court of Indiana, in Banc.

Aug. 1, 1929.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Harry Lee was convicted of maintaining a common nuisance, in violation of Burns' 1926, § 2740 (Acts 1925, c. 48, § 24), and he appeals. Affirmed.

Thomas C. Whallon, of Indianapolis, for appellant.

James M.0 Ogden, Atty. Gen., and V. Ed. Funk, Deputy Atty. Gen., for the State.

ENLOE, J.

The appellant was tried and convicted upon a charge of maintaining a common nuisance, in violation of section 2740, Burns' 1926 (section 24, Acts 1925, pp. 144, 154, c. 48) from which judgment this appeal is prosecuted; the error assigned being the action of the court in overruling his motion for a new trial.

Counsel for appellant, in his brief filed herein, says: “No plea of guilty or not guilty is shown by the record to have been entered or made by said Harry Lee.” Based upon this fact, appellant urges that the cause must be reversed because, upon the record, there was no issue to be tried, and authorities are cited to sustain this contention. The above is the only question properly presented.

However, the Legislature, in 1927 (section 9, Acts 1927, pp. 411, 416, c. 132), amended section 197 of the act of 1905 (Acts 1905, pp. 584, 627, c. 169; section 2232, Burns' 1926), by adding thereto the following proviso: “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 record in this case shows no such objection as mentioned by the statute, and we therefore conclude that the contention of appellant is not well taken.

Affirmed.