Shoffner v. State
| Decision Date | 18 September 1883 |
| Docket Number | 10,976 |
| Citation | 93 Ind. 519 |
| Parties | Shoffner v. The State |
| Court | Indiana Supreme Court |
Rehearing Date: February 23, 1884
Reported at: 93 Ind. 519 at 521.
From the Hendricks Circuit Court.
The judgment is affirmed, with costs.
J. V Hadley, E. G. Hogate and R. B. Blake, for appellant.
F. T Hord, Attorney General, W. T. Brown, Prosecuting Attorney, and W. B. Hord, for the State.
This was a criminal prosecution, upon affidavit and information, under section 2039, R. S. 1881, for suffering a county poor-house to become foul and unclean.
The record of the proceedings in the court below, as recorded by the clerk, notes the appearance of the prosecuting attorney for the State, and of the defendant in person, and states that the defendant, Tetmany Shoffner, moved to quash the information; that the motion was overruled, whereupon the defendant waived an arraignment and pleaded not guilty; that a trial by a jury resulted in a verdict of guilty, assessing the fine at twenty-five dollars; that the court, after considering and overruling a motion in arrest of judgment, rendered judgment on the verdict.
The day after the trial, and before the record of the proceedings, entered as above by the clerk, was signed by the judge, the defendant moved to correct the entry of the proceedings in respect to the alleged waiver of arraignment, and entering a plea to the information, charging that the information was only read in his hearing when the motion to quash it was made, and that he did not in fact either waive an arraignment, or enter a plea of any kind to the information; but the court, conceding that there had been no formal waiver of arraignment or entry of a plea of not guilty, overruled the motion to correct the proceedings, as recorded by the clerk, upon the ground that the defendant had gone to trial without objection as upon a plea of not guilty, and that he had had the full benefit of that plea at the trial.
The defendant appealing has assigned error upon these last named proceedings, and asks a reversal of the judgment because his motion was not sustained.
It is true, as contended, that a trial without an issue is erroneous. It is also true that a trial upon an indictment, or information, without a plea, constitutes such an irregularity in the proceedings as entitles the defendant to a new trial if the verdict is against him, or, at his option, to have the verdict set aside as contrary to law, but advantage can only be taken of such a defect in the proceedings by a motion for a new trial. R. S. 1881, sec. 1842; Tindall v. State, 71 Ind. 314.
A motion in arrest of judgment goes only to the jurisdiction of the court, or to the sufficiency of the indictment or information. R. S. 1881, section 1843.
In this case there was no motion for a new trial. Consequently, no question was reserved in the court below upon the non-waiver of an arraignment, or upon the failure of the court to require a plea to the information.
The motion of the appellant to have the minutes of the court corrected, after the cause had been disposed of upon its merits, raised no question for review here. So long as there was no motion to set aside the verdict on account of some defect in that respect, it was quite immaterial whether or not a plea to the information was in fact entered.
The judgment is affirmed, with costs.
Before proceeding with the trial of this cause a motion to quash both the affidavit and information was entered and overruled, and the first specification of error, assigned in this court, called in question the decision of the court below in overruling that motion. Complaint is now made that we failed to notice that specification of error at the former hearing.
The transcript filed by the appellant, in referring to the affidavit and information, contains the following entry of proceedings below: "Comes Brown, prosecuting attorney, and files affidavit and information herein (affidavit and information lost and not on file), and on motion the court orders bench warrant to issue for said defendant, which is now done," and neither the affidavit nor information is anywhere copied into the transcript.
The appellant, in support of the alleged insufficiency of the affidavit and information, argued in...
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