Sabo v. State , 197 Ind. 210 ( 1926 )

Appellant was charged by affidavit with the unlawful transportation of intoxicating liquor in an automobile. The record does not show that he was arraigned or that he 1-5. entered a plea of any kind in the circuit court, as the statute requires, § 2232 Burns 1926, § 2068 Burns 1914, § 197, ch. 169, Acts 1905 p. 584. And while the defendant might be tried in the circuit court on the affidavit filed with the mayor of Washington, that affidavit could not serve the purpose of a pleading in the circuit court until the approval of the prosecuting attorney was indorsed upon it. § 2103 Burns 1926, § 1940a Burns' Supp. 1921; § 1, ch. 252, Acts 1921 p. 742; Hicks v. State (1916), 185 Ind. 223, 225, 113 N.E. 722. And the trial in the circuit court on a charge of felony is de novo. § 2102 Burns 1926, § 1940 Burns 1914, § 72, ch. 169, Acts 1905 p. 584. So that the hearing which appellant had before the mayor that resulted in his being recognized to appear and answer the charge in the circuit court was not a substitute for such arraignment and plea. §§ 2105, 2151, 2199, 2221 Burns 1926, §§ 1942, 1990, 2037, 2042 Burns 1914, §§ 74, 119, 166, 171, ch. 169, Acts 1905 p. 584; Butler v. State (1887),113 Ind. 5, 8, 14 N.E. 247. The authorities hold that the motion for a new trial for the reason that the verdict was contrary to law sufficiently presented the objection that defendant had neither been arraigned nor waived arraignment and had not entered a plea.Tindall v. State (1880), 71 Ind. 314; Bowen v. State (1886), 108 Ind. 411, 412, 413, 9 N.E. 378; Andrews v. State (1925), 196 Ind. 12, 146 N.E. 817. For failure to arraign him or cause him to plead the judgment must be reversed. Pritchard v.State (1920), 190 Ind. 49, 51, 127 N.E. 545.

It is not deemed necessary or advisable in deciding this appeal to pass on the question whether or not the intoxicating liquor found in the automobile was admissible in evidence.

The judgment is reversed, with directions to sustain the motion for a new trial.