Aрpellant was charged by affidavit in two counts filed in the Vermillion Circuit Court, charg *612 ing first and second degree arson. §§2441, 2442 Burns Supp. 1929, Acts 1927 p. 122.
Appellant was arraigned on the first count of the affidavit which charged arson in the first degree on July 24,1931, and entered a plea of not guilty. Subsequеntly, on October 14, 1931, the second count of the affidavit, which charged arson in the second degree, was filed. Appellant went to triаl on October 14, 1931, without being arraigned or without a plea being entered as to the said second count of the affidavit.
There was а trial by the court without the intervention of a jury and a finding of guilty as charged in the second count of the affidavit. Judgment was entered on the finding, аnd appellant was sentenced to the Indiana reformatory for a period of from one to 10 years.
Appellant filed his motion for a new trial, which was overruled, and hence this appeal.
Appellant in his motion for a new trial assigns error: (1) The finding of the сourt is contrary to law; (2) the finding of the court is not sustained by sufficient evidence; (3) the finding of the court is not sustained by the evidence; (4) the affidаvit on which defendant was tried is not sufficient to sustain the finding of the court.
The only error assigned here is the overruling of his motion for a new trial.
Appellant contends under his first reason for a new trial that, as he was found guilty on the second count of the affidavit, and that the recоrd shows that he was not arraigned and entered no plea to the charge, therefore no issue was formed upon which a trial сould be had, and for that reason this case should be reversed.
With this contention we cannot agree. The last clause of §9, ch. 132, Acts 1927 p. 417, §2232 Burns Supp. 1929 provides: “Any conviction shall not be invalidated by failure of the record to show an arraignment and plea or eithеr of them, unless the *613 record shall show that the defendant before the trial objected to entering upon the trial for lack of such arraignment or plea.”
The question thus presented by appellant was before this court in the case of
Tokacs
v.
State
(1930),
The case of
Lee
v.
State
(1929),
Appellant cites several authorities in support of his contention, but on examination of them discloses that they were decided under the аct of 1905, prior to its amendment in 1927.
Appellant urges that, if the above statute is applicable to the question as presented by the record in this case, then the act is unconstitutional and void.
The constitutionality of a statute must be raised either by a motion to quash or by a motion in arrest, and not by motion for a new trial. In the recent case of
Ellwanger
v.
State
(1932),
ante
307,
The method adopted by appellant to present his alleged constitutional question cannot be apprоved. There was no motion to quash nor motion in arrest of judgment, and therefore upon the record here submitted that question is not before us.
Appellant by his second reason for a new trial questions the sufficiency of the evidence to sustain the finding of the court. In his brief hе does not point out any deficiency in the evidence to sustain any of the material facts necessary to the finding. This was a duty resting upon appellant to sustain such an alleged error. It is not incumbent upon the court to search the record to ascertаin whether or not each material element of the crime has been supported by some competent evidence.
Young
v.
State
(1923),
The conviction in this case was based solely on circumstantial evidence, some of which, it must be admitted, coincides with the hypothesis of guilt. This is in effect admitted by appellant in his brief in which he quotes from
Cavender
v.
State
(1890),
*615
*614
The jurisdiction of this court on appeal is limited to errors of law only and it has no jurisdiction to pass upon errors of fact. The cоrrection of an error of fact belongs to the trial court. This court cannot retry ques
*615
tions of fact.
Young
v.
State, supra; Deal
v.
State
(1895),
The fourth specification in appellant’s mоtion for a new trial questions the sufficiency of the affidavit to sustain the finding of the court. The record shows that the affidavit was not indorsed by thе prosecuting attorney before filing, with the words “Approved by me,” as provided by §2151 Burns 1926. Appellant did not raise this objection below by motion to quash. Such a defect would have been fatal on motion to quash.
Cole
v.
State
(1907),
It was said in the case of
Tow
v.
State
(1926),
We find no error in the action of the trial court in overruling appellant’s motion for a new trial.
Judgment affirmed.