
    Knudson v. The State of Ohio.
    
      Criminal law — Plea of not guilty withdrawn to challenge affidavit — Trial without further plea, after motion and demurrer overruled, not prejudicial — Changing record as to plea of not guilty, immaterial, when — “Withdrawn” changed to “re-entered.”
    
    1. Where plea of not guilty was withdrawn for purpose of motion, and demurrer directed to affidavit, trial without further plea, after motion and demurrer were overruled, held not prejudicial error.
    2. Change in record by substituting “re-entered” for “withdrawn” in statement that plea of not guilty was withdrawn held immaterial, where no prejudice was shown.
    (Decided January 26, 1925.)
    Error: Court of Appeals for Wood county.
    
      Mr. Benjamin F. James, for plaintiff in error.
    
      Mr. Ray D. Avery, for defendant in error.
   Young, J.

On the 7th day of April, 1924, Martin Knudson, plaintiff in error, was arrested on an affidavit charging him with possession of intoxicating liquors, in violation of the liquor laws of the state of Ohio; the affidavit charging a second offense. A plea of not guilty was entered upon arraignment, and defendant was released on his own recognizance. The record shows that on April 10, 1924, Knudson appeared in court, trial was had, and defendant found guilty and sentenced to pay a fine of $2,000 and costs.

On motion, execution of sentence was suspended, pending error proceedings. Plaintiff in error says that on the day of trial a plea of not guilty was withdrawn for the purpose of filing a motion and demurrer directed to the affidavit. The request was granted. The motion and demurrer were overruled, and the cause proceeded to trial. Plaintiff in error, Knudson, now complains that no further plea was entered, but that the court (probate judge) changed the bill of exceptions by striking out the word “withdrawn” and substituting the word “re-entered,” and also cites other changes made by the court, concerning which no great controversy between the parties appears.

He now asks that the case be remanded to the probate court of Wood county for correction of the record. Prior to the hearing of this case in this court, the plaintiff in error brought a mandamus proceeding in the Supreme Court, where relator sought a writ requiring the probate court to sign and allow what the relator, Knudson, claims to be a true bill of exceptions. On the 23d day of December, 1924, that court refused to grant such writ, and in a per curiam opinion (State, ex rel. Knudson, v. Bistline, 111 Ohio St., 815, 818, 146 N. E., 288, 289), used this language:

“It appears that upon presentation and examination of the bill of exceptions the probate judge changed the word ‘withdrawn,’ and wrote in the word ‘re-entered’ in the sentence ‘We have the right to proceed, the plea of not guilty having been withdrawn. (Re-entered.)’”

The last paragraph of the journal entry is as follows: “Thereupon said defendant was rearraigned upon said affidavit filed herein, and expressly waived the reading of the same, and for plea thereto says he is not guilty, and puts himself upon the country, and the prosecuting attorney doth the like.”

The plaintiff in error says that this paragraph does not speak the truth. While the record discloses the changes complained of, we think the point is well settled in the case of Gormley v. State, 37 Ohio St., 120, and we find no prejudicial error resulting to this plaintiff in error because of the fact that the plea to the general issue was not entered the second time. The mere change in expression in the record from “withdrawn” to “reentered,” without showing prejudice to the rights of the defendant in the court below, is immaterial, as no prejudicial error could be based thereon. The Supreme Court having passed upon that issue, there is nothing further for this court to consider in that respect.

We now come to the second alleged ground of error, namely, the finding and judgment of the court are against the weight of the evidence. We have carefully read all the evidence adduced at the trial, as shown by the bill of exceptions, and find nothing therein that would justify a reversal of the judgment of the probate court, and no reason for remanding the case for correction of the bill of exceptions.

Judgment affirmed.

Chittenden and Richards, JJ., concur.  