
    Kelley v. The State of Ohio.
    (Decided November 7, 1930.)
    
      Mr. J. O. Tates, for plaintiff in error.
    
      Mr. Lee D. Andrews, prosecuting attorney, for defendant in error.
   Blosser, J.

The plaintiff in error, Robert Kelley, was charged in the court of common pleas with the illegal possession of intoxicating liquor, and was convicted of that offense. The record fails to affirmatively show that the accused was arraigned or entered a plea to the charge made against him. This is the only ground urged for a reversal of the judgment.

The record fails to show that the plaintiff in error made any objection to entering into his -trial in the court of common pleas, and it must be inferred from the record that the trial proceeded without any objection on his part.

Formerly it was held that in the trial of a person charged with a felony or infamous crime the record must show that the defendant was arraigned, and that a plea of not guilty was entered. This was held tQ be jurisdictional for tbe reason that it was necessary to make up an issue before the court could proceed with the trial of the case. This rule is announced in the case of Crain v. United States, 162 U. S., 625, 16 S. Ct., 952, 960, 40 L. Ed., 1097, the opinion of the court being by Mr. Justice Harlan, with a dissenting opinion by Mr. Justice Peckham. Later this rule was relaxed, and the rule in the Grain case overruled, in the case of Garland v. Washington, 232 U. S., 642, 34 S. Ct., 456, 58 L. Ed., 772, wherein it is said that a conviction was not wanting in the due process of law guaranteed by the United States Constitution because no arraignment or plea was had upon the information, where, without raising that specific objection before trial, the accused had made certain other objections to such information and was put to trial thereon before a jury, in all respects as though he had entered a formal plea of not guilty. In the later case the opinion of the court was announced by Mr. Justice Day, and the Supreme Court adopted the reasoning as expressed in the dissenting opinion of Mr. Justice Peckham in the case of Crain v. United States, supra, as follows:

“A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court. ’ ’

The plaintiff in error has cited the cases of Hanson v. State, 43 Ohio St., 376, 1 N. E., 136, and Emmons v. State, 14 C. C. (N. S.), 351, 23 C. D., 516, in support of his contention. It will be noted that the charges in both of these cases are for felonies under our statutes.

“The authorities differ as to whether an arraignment is necessary in a prosecution for a misdemeanor. The modern tendency is toward relaxing the severity of the ancient rules in criminal trials, especially in the lower grades of * * * misdemeanors.” 8 Ruling Case Law, 107.

“Generally, however, arraignment in the case of misdemeanors may be waived, and a waiver will be implied if the accused proceeds to trial in the usual manner without objection.” 16 Corpus Juris, 391.

“Failure to arraign a defendant accused of a felony is fatal to a conviction. But where the charge is for a misdemeanor only, it is usually held that arraignment of the accused is unnecessary.” Abbott’s Criminal Trial Brief (3d Ed.), 36.

The plaintiff in error having been charged with a misdemeanor in the court below, and having proceeded to trial without any objection because of the failure to arraign, and the trial having proceeded as though he had entered a plea of not guilty, it is now too late to complain of that irregularity.

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

Middleton, P. J., and Maitck, J., concur.  