Opinion
No. 13,767.
Filed August 1, 1929. Rehearing denied October 3, 1929.
CRIMINAL LAW — Failure to Arraign Defendant — Failure of Defendant to Plead — Not Reversible Error. — Under the provision of § 2232 Burns 1926, as amended Acts 1927, ch. 132, p. 416, § 9, the failure to arraign the defendant or to enter a plea of some kind, thus creating an issue to be tried, does not constitute reversible error, unless the record shows that the defendant, before trial, "objected to entering upon the trial for lack of such arraignment or plea."
From Marion Criminal Court (63,676); James A. Collins, Judge.
Harry Lee was convicted of maintaining a liquor nuisance, and he appealed. Affirmed. By the court in banc.
Thomas C. Whallon, for appellant.
James M. Ogden, Attorney-General, and V. Ed Funk, Deputy Attorney-General, for the State.
The appellant was tried and convicted upon a charge of maintaining a common nuisance, in violation of § 2740 Burns 1926 (Acts 1925 p. 144, § 24), 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.
The Legislature in 1927, however (Acts 1927 p. 411, § 9) amended § 197 of the act of 1905 (Acts 1905 p. 584, § 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.