Opinion
No. 24,873.
Filed December 6, 1928. Rehearing denied April 26, 1929.
1. CRIMINAL LAW — Arraignment — Trial Without — Contrary to Law. — Defendants were brought before a justice of the peace on a charge of having committed a felony (§ 2102 Burns 1926). They waived arraignment and were required to enter into a recognizance for their appearance at the next term of the circuit court. They were there brought to trial on the same affidavit filed with the justice without an arraignment or a plea to the charge by either of them. The circuit court did not enter a plea of not guilty as provided by § 2232 Burns 1926. Held, that the verdict was contrary to law because there was no arraignment. p. 81.
2. APPEAL — Petition for Rehearing — New Questions Cannot be Presented. — A question which was not presented by the assignment of errors and the original briefs cannot be presented for decision by a petition for a rehearing. p. 82.
From Daviess Circuit Court; Milton S. Hastings, Judge.
Timothy Sullivan and Thomas Sullivan were convicted of a felony, and they appealed. Reversed.
Alvin Padgett and Arthur Rogers, for appellants.
Arthur L. Gilliom and James M. Ogden, Attorney-Generals, E. Burke Walker, Deputy Attorney-General, and Arnet B. Cronk, for the State.
Appellants were brought before a justice of the peace under arrest for a hearing upon a charge of having committed a felony preferred by an affidavit. Acts 1905, ch. 169, § 72, § 2102 Burns 1926. At the hearing, appellants waived arraignment, and the accused were recognized by the justice of the peace to appear at the next term of the circuit court.
In the circuit court, the accused were brought to trial upon the same affidavit that theretofore had been filed with the justice of the peace, and upon which accused were so recognized to appear at the circuit court. After trial, a verdict of guilty was returned, upon which judgment for the State was rendered, all without an arraignment of either of appellants, or a plea to the charge by either of them. Acts 1905, ch. 169, § 197, § 2232 Burns 1926.
The circuit court did not enter a plea of not guilty for either of appellants.
On appeal, appellants present error upon the action of the trial court overruling their motion for a new trial, for the cause that the verdict of guilty returned by the jury is 1. contrary to law. On authority of Andrew v. State (1925), 196 Ind. 12, 146 N.E. 817, and Sabo v. State (1926), 197 Ind. 210, 150 N.E. 103, the ruling of the court complained of was erroneous.
Cause remanded, with instructions to sustain appellants' motion for a new trial.
Judgment reversed.
ON PETITION FOR REHEARING.
Appellee petitions for a rehearing because the opinion is in conflict with the provisions of an amended law passed in 1927. § 9 of ch. 132, Acts 1927 p. 416. The petition for rehearing 2. is overruled for the reason that this question was not presented in the brief of appellee, or in the argument to the brief. A question of law which is not presented for decision by the assignment of errors and the briefs cannot be presented for decision by a petition for rehearing. Rule 22 of the Supreme Court; City of Princeton v. Williams (1920), 190 Ind. 281, 289, 128 N.E. 601, 130 N.E. 122; Kilgallen v. State (1921), 192 Ind. 531, 546, 132 N.E. 632, 137 N.E. 178.
The petition for rehearing does not present any question of law for decision, and it is therefore overruled.