1 Wyo. 149 | Wyo. | 1873
By the Court,
The record in this case shows that at the July term of the district court in and for the county of Laramie, in the first judicial district, the grand jury found an indictment against Emilie Waldschmidt, charging her with an assault and battery, with an attempt to commit murder by means of a certain pistol commonly called a revolver, upon one August Blucher. To which indictment the said Emilie Waldsehmidt, upon being arraigned, pleaded “not guilty.” That after said plea she, the said E. W., filed an affidavit of prejudice on the part of the presiding judge of the first judicial district; that upon the filing of which a change of venue was allowed, and the proceedings were transferred to Carbon county, which is and was in the second judicial district. The ease was duly tried and a verdict of “guilty” rendered by the jury, who also fixed the penalty, to wit, a fine of one hundred dollars, and the payment of costs by defendant. A motion in arrest of judgment and for a new trial was duly made and several errors assigned, among which were the following:
1. Because the defendant was never arraigned as required by statute;
2. Because the plea of defendant was not written or entered on the indictment as required by law;
3. Because J. Nankin, one of the jurors who tried the cause was not a legal juror in the territory at the time of the trial, which fact was unknown to the defendant -until after the verdict of the jury was rendered;
4. Because J. Nankin, one of the jurors, was, on account of his non-residence at the time of the trial, incompetent
On the part of defendant in error, these several assignments were denied. The motion for the new trial was overruled, to which ruling the defendant below by her counsel excepted, and the record is brought here for review. The first error assigned is fully met and contradicted by the record in the district court for Laramie county, by which it is not only shown that the defendant in that court was arraigned, but that she asked for and was allowed time to enter her plea, and that she subsequently pleaded “not guilty.” The second error assigned, viz., that the plea was not entered on the indictment as required by law.
While the record does not show that in this particular the requirements of the statute were strictly complied with, yet we do not find that by the failure of the clerk to write the • plea on the bill of indictment that the defendant in the court below was in any way embarrassed by such failure. And it is one of the well-settled principles of the law that a failure to conform to any merely directory statute which does no wrong to a complaining party should be disregarded by a reviewing court, and surely the mere failure to make such an indorsement on the indictment could not, in the nature of the fact, work any wrong to the defendant below; hence we fail to see any substantial error. The third and fourth errors assigned were abandoned by the counsel for plaintiff in error on the argument; hence we are not called upon to give an opinion on them. But we may say that if they had not been abandoned, that the record shows conclusively that there is nothing in the errors complained of, inasmuch as the juror in question has filed an affidavit which has found its way into the record, showing that he possessed all the requisite qualifications to constitute him a competent juror.
We-therefore remand the ease to the district court, with directions to that court to carry out the sentence in the case, adding the costs which have accrued in this court as a part of the sentence.
