Schlungger v. State

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

113 Ind. 295

15 N.E. 269

Schlungger

v.State.

Supreme Court of Indiana.

February 9, 1888.

Appeal from circuit court, Wells county; Henry B. Sayles, Judge.

C. M. France and M. W. Lee, for appellant. E. C. Vaughn and The Attorney General, for appellee.

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 prison for one year, to which was 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 he had no right or jurisdiction to try the case, or give judgment therein.

Concerning the point last named, the record recites that “on the fourteenth day of October, 1887, the same being the twenty-third judicial day of the September term, 1887, before the Honorable Joseph S. Daily, 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 cannot, 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. 125-133, 4 N....