
    John Waggoner v. The State of Ohio.
    1. Where the proper officer has neglected to enter upon the indictment the plea of not guilty hy the accused at the proper time, as prescribed by section 120 of the criminal code, the court may, after he is ready for trial, and a jury has, without objection, been duly impaneled and sworn to try the case upon such a plea, cure such omission, by causing such plea to be so entered.
    '2. Allegations of facts made in a motion for a new trial, not supported by the record nor made part thereof by bill of exceptions, can not be considered upon proceedings in error to reverse the judgment.
    Error to the Court of Common Pleas of Hamilton ■county.
    At the June term, a. d. 1878, Waggoner was indicted for a misdemeanor under the statute.
    On the indictment was the following indorsement: “Plea ■of not guilty, entered by order of court, January 15, 1874. H. H. Tinker, clerk C. C. P., by D. W. Trasher, deputy.”
    At the same term at which the indictment was found, the ■defendant appeared in court, and entered into a recognizance with surety for his appearance at the next (November) term, to answer the charge against him.
    The record is silent as to what, if any proceedings were bad in the case at the November term.
    But it appears that at the January term, 1874, to wit, on ■the 15th of January, 1874, the defendant, being in court with his counsel, both the state and the defendant responded ■to an inquiry of the court that they were ready for trial.
    
      Thereupon a jury was impaneled, which was accepted as-satisfactory by defendant, and the same was duly sworn “tO' well and truly try and true deliverance make between the State of Ohio and the prisoner at the bar,” etc.
    Thereupon the prosecuting attorney stated the case to the jury, and c.ounsel for the defendant proceeded to state his case to the jury, and, in doing so, read the indictment, and then, for the first time, made the objection, “ that no plea was indorsed thereon ;” stating he had not known the fact before, and, then objected to further proceedings in the case.
    Thereupon the court asked counsel for defendant, the latter being present, if he had any objection to the indictment in form or substance, to which he replied that he had not.
    The coui’t then, the defendant declining further to pleadr ordered the plea of not guilty to be entered, which was done. This is the indorsement of January 15,1874, above quoted.
    The cause then proceeded to trial, and a verdict of guilty as charged was returned.
    A motion for a new trial and arrest of judgment was filed, heard, and overruled, but no bill of exceptions was taken.
    The motion was based on several grounds; among others,, that the jury was sworn before the defendant was arraigned or called on to plead to the indictment; and that the court ordered the plea of not guilty to be entered in the ease after the jury had been sworn.
    Upon overruling the motion, sentence was passed upon the accused, and this petition in error was filed to review the action of the court below in the premises.
    The allegations of fact contained in the motion are not supported by evidence,,nor made part of the record by a bill of exceptions.
    
      J. W. & G. B. Okey, for plaintiff in error.
    
      John Little, attorney-general, for the state.
   Johnson, J.

The criminal code (title 5, art. 2) prescribes the mode of arraignment, the pleas that may be made, and proceedings thereon.

By section 115, the accused shall be arraigned by reading-the indictment, and the court shall ask him: “Are you guilty of the offense therein charged, or are you not guilty?”

By section 119, if he plead “guilty,” “ the plea shall be-recorded on the indictment.”

By section 120, if he plead not guilty,” “ the plea shall be entered on the indictment.”

By section 118, if the issue upon a plea in bar be found against the accused, or if he offer no plea in bar, he shall answer the question propounded by the court, by pleading- “ guilty ” or “ not guilty ;” but if he plead evasively, or' stand mute, he shall be taken to have pleaded “ not guilty.”' In the case at bar, the record is silent as to an arraignment and plea, except that the indictment shows the indorsement already quoted, which was made by order of the court after the jury was impaneled and sworn without objection.

If the accused had been arraigned at a previous term, and pleaded to the indictment, but the proper officer had omitted to enter the plea, we think it was entirely proper that the-court should cure the omission, by making the indorsement' that should have been made at the proper time.

If we follow literally the language of section 118, there is no requirement that any indorsement shall be made on the indictment when tbe accused refuses to plead. At most, all the indorsement' that should be made in such case was-the simple words “ not guilty.”

The only reasonable interpretation of this indorsementis, that it was made to cure an omission of the officer whose-duty it was to enter the plea upon the indictment.

The accused did not then claim that he had never been arraigned nor had an opportunity to plead ; but that “ no-plea was indorsed thereon ” — that is, on the indictment.

In view of the fact that the accused had appeared and given. bond to answer the charge at the next term ; that he was ready for trial; that he permitted a jury to be sworn as upon a plea of not guilty, and that, upon examination of the indictment, while stating his case to the jury, he then, for the first time, objected to proceeding further, because no plea was indorsed thereon — it is fairly to be inferred that be had already plead, but that the proper officer bad failed enter such plea on the indictment.

Upon finding that the proper indorsement was not made be declined to proceed ; thereupon, counsel for accused was .•asked if he had any objection to the form or substance of the indictment, to which it was replied that he had not.

The record then shows that the accused declined further ■to plead, whereupon the court ordered this indorsement to be made.

Declining further to plead, implies he had already made • bis plea, and was objecting because of the omission to ■enter it.

It was not a case of pleading evasively, or of standing mute, coming under section 118 of the code, but of a refusal further to plead, because there was no indorsement •entered on the indictment.

That the court might, under the circumstances stated, •cure an omission, to make such indorsement when a plea had in fact been orally put in, there can be little doubt.

If the fact was that the accused had not been properly .arraigned, or had no opportunity to plead, counsel would .have so stated, and placed his objection on that ground.

It is true, that, in the motion for a new trial, it is stated .as a fact that such was the case; but this motion was overruled, and, for aught that appears, because it was not true, .and that in fact the accused had plead, but no entry thereof was entered upon the indictment.

To rebut the presumption arising from the record, the .fact alleged in the motion should have been made part of fhe record by a bill of exceptions.

This was not done, and the absence of such a bill of exceptions can not be supplied by allegations of fact in the motion for a new trial, unsupported by the record.

This view of the case makes it unnecessary to consider the question presented, whether, in the case stated, the trial could proceed, if, in fact, the accused had not been arraigned, nor had an opportunity to plead.

Judgment affirmed.  