Scruggs v. State

93 So. 482 | Miss. | 1922

Holden, J.,

delivered the opinion o'f the court.

S. O. Scrug’gs appeals from a conviction and sentence of two years in the penitentiary on the chárge of manufacturing intoxicating liquor.

We do not think any of the points presented for reversal by appellant merit discussion, except one, and that is that the lower court erred in putting the defendant on trial without arraigning him until after the state had closed its evidence.

The record shows that, after all of the testimony for the state had been submitted to the jury and the appellant had begun to introduce his proof, the court then arraigned the appellant on the indictment charging a felony. Immediately after the arraignment counsel for the appellant seems to have objected or excepted to the action of the court in the following language:

“Let the record show that the defendant was arraigned after the state had closed its evidence, and the defendant excepted to the court's ruling allowing this to be done."

It will be observed tbe appellant “excepted to tbe court’s ruling allowing this to be done.” He made no request of the court that the trial be discontinued, nor did he object to the further progress of the trial. The record also discloses that appellant made no objection to proceeding without arraignment at the beginning of the trial, but proceeded to present and take care of his side of the case on the issue then and there being tried.

For the purpose of squarely determining the question involved, we shall concede that the ■ exception taken by appellant as set out above was in effect an objection to the arraignment at that period in the trial, and that it amounted to a request for a'discontinuance of the trial.

The question then presented for decision is whether it was error in the court to proceed with the trial after the objection was made to the arraignment, or whether the appellant waived the arraignment at the beginning of the trial when he took issue with the state on the charge in the indictment and proceeded with the case.

We are aware of the common-law rule requiring arraignment and joinder of issue between the state and the defendant before proceeding with the trial. We have not overlooked section 1480, Code of 1906 (section 1238, Hemingway’s Code), nor have the earlier decisions of this court requiring arraignment escaped our attention; nevertheless we think the more modern and better rule followed by the courts of our country is that the defendant may waive arraignment, either expressly or impliedly, by proceeding to trial without objection, and thus by his assent and conduct impliedly join issue with the state on the indictment.

We think the Arbuckle Case, 80 Miss. 15, 31 So. 437, is ample, if not positive, authority for this view, and that case in effect overrules the earlier and prior decisions on the point.

We do not think a defendant could waive any jurisdictional right by failing to object in the lower court, as provided by section 4936, Code of 1906 (section 3212, Hemingway’s Code), which also provides that a judgment will not be reversed by this court wherein no objection was made in the lower court as to any right given the defendant in the procedure of the trial; and we see no good reason for holding that a defendant cannot waive the arraignment, which right, of course, is not jurisdictional, but merely one of procedure.

If we are correct in the view we have expressed that a defendant may waive the arraignment at the beginning of the trial, then his subsequent objection to a later arraignment, which was done in this case, cannot avail him to set aside the conviction. When he expi’essly or impliedly joins issue with the state on the indictment and proceeds to trial without arraignment, and thereby hears the evidence and secures the chance of an acquittal by the jury, he cannot complain of the failure to arraign, because he waived it in the beginning of the trial.

The judgment of the lower court is affirmed.

Affirmed.