Schlungger v. State

• Decision Date: 09 February 1888
• Docket Number: 14,085
• Citation: 15 N.E. 269,113 Ind. 295
• Parties: Schlungger v. The State
• Court: Indiana Supreme Court

15 N.E. 269

113 Ind. 295

Schlungger v. The State

No. 14,085

Supreme Court of Indiana

February 9, 1888

From the Wells Circuit Court.

Judgment affirmed, with costs.

C. M France and M. W. Lee, for appellant.

L. T Michener, Attorney General, E. C. Vaughn, Prosecuting Attorney, and J. H. Gillett, for the State.

OPINION

Mitchell, C. J.

The appellant was tried in the court below and found guilty of the charge of petit larceny. His punishment was fixed at imprisonment in the State's prison for one year, to which were added a fine and disfranchisement.

There are two grounds presented in the brief upon which a reversal of the judgment is asked: 1. That the verdict is not sustained by the evidence; and, 2. Because the judge pro tempore, who presided at the trial, was not regularly appointed, and hence had no right or jurisdiction to try the case or give judgment therein.

Concerning the point last named, the record recites that "on the 14th day of October, 1887, the said being the twenty-third judicial day of the September term, 1887, before the Honorable Joseph S. Dailey, judge pro tem., the following further proceedings were had by said court in said cause: * * * Comes now the State, by E. C. Vaughn, prosecuting attorney, and the defendant in person and by counsel, and by agreement this cause is submitted to the court as now constituted."

The record shows an arraignment, a plea of not guilty, and a trial by jury, including all the other steps to judgment and sentence, over a motion for a new trial, without any objection in any form whatever to the competency of the court or to the regularity of the appointment of the presiding judge.

In Kennedy v. State, 53 Ind. 542, a case relied on by the appellant, this court, following a rule settled by numerous authorities cited in the opinion, said: "Where a cause is tried, in whole or in part, before any other than the regular judge, the record, whenever objection is made in the court below to the authority of such person, must show legal authority in such person to act as such judge; but where no objection is made in the court below, all objections to his authority will be deemed in this court to have been waived."

The record does not disclose the want of authority of the presiding judge, and the cases are abundant which declare that, where a party goes to trial, without objection, before a judge who assumes to act under color of authority, he can not after judgment or conviction successfully make the objection that the judge acted without competent authority in the trial of the case. Smurr v. State, 105 Ind. 125, 4 N.E. 445 (133), and cases cited; Henning v. State, 106 Ind. 386, 395 (55 Am. R. 756, 6 N.E. 803).

The record being silent as to the authority, or want of authority, of the presiding...