Opinion
No. 36375.
April 14, 1947.
CRIMINAL LAW.
Where defendant was indicted under two indictments for felonious assault on two persons, and the State without objection introduced evidence covering both of the assaults, but elected to ask for a verdict only on the second indictment, defendant, by participating fully in trial without objection, waived any objection because he was not arraigned on the indictment under which he was convicted but under the other indictment.
APPEAL from the circuit court of Jefferson county. HON. R.E. BENNETT, J.
J.H. Garth, of Hazlehurst, and H.C. Stringer, of Jackson, for appellant.
The court committed reversible error in permitting the prosecution to try two separate and distinct felony charges (by separate indictments) simultaneously and before the same jury.
The record fails to disclose that the appellant was ever arraigned upon the Clarence Henderson indictment. It follows that this verdict is a nullity and this Court should so hold.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Error in the admissibility of evidence can be predicated only on objection thereto, specifically pointing out the infirmity therein.
Jackson v. State, 163 Miss. 235, 140 So. 683.
Under the modern decisions by this Court an arraignment is not jurisdictional and may be waived by the defendant, and is waived when he takes part in the trial without objection to the arraignment.
Thomas v. State, 200 Miss. 220, 26 So.2d 469.
The appellant was indicted for a felonious assault upon David Henderson and by another indictment for a felonious assault upon Clarence Henderson. Both indictments appear in the record, the second being certified to this Court by the Clerk of the Court below on request of the Attorney General after the filing of the record in the case which contained only the first of these two indictments. The appellant's complaints are that he was tried on both of these indictments at the same time and that the State elected to ask for a verdict only on the second of them, the one charging the assault on Clarence Henderson. The alleged assault on Clarence Henderson was made a few minutes after the assault on David Henderson and the State without objection introduced evidence covering both of these assaults. The evidence as to the assault on David Henderson may, and probably does, disclose the motive for the appellant's alleged assault on Clarence and therefore was probably competent, but be that as it may, no objection whatever was made to it. The Clerk's record of the case discloses some uncertainty as to which of these indictments the appellant was tried on, but it is clear from the instructions for the State and from one of the instructions for the appellant that the jury's attention was directed to the indictment charging an assault on Clarence and that that was the offense for which the appellant was convicted. The record discloses an arraignment of the defendant and a plea by him of not guilty, but it is not clear therefrom to which of these indictments the arraignment was directed, but that fact is of no consequence for if the defendant was not arraigned on the indictment on which he was actually tried he waived any objection thereto by participating fully in the trial in all of its aspects without objection to his arraignment. Thomas v. State, 200 Miss. 220, 26 So.2d 469.
Affirmed.