
    
      Supreme Court—General Term—Third Department.
    November, 1884.
    PEOPLE v. OSTERHOUT.
    Want of formal arraignment and plea.
    Judgment will not be arrested nor the conviction reversed for the want of a formal arraignment of, and plea on the part of defendant, where ho did not ask to plead, was present with his counsel throughout the whole trial and did not, until after the rendering of the verdict and discharge of the jury, object that he had not been arraigned. The defect is merely a technical one affecting no rights whatever, and will not be considered by the appellate court (Oode Grim. Proe. § 542).
    Appeal by defendant, Charles Osterhout, from a judgment rendered at the March term, 1884, of the Court of Sessions of Rensselaer county, convicting him of assault in the first degree.
    Defendant was indicted by the grand jury of Rensselaer county, at the Oyer and Terminer, September, 1883, for assault in the first degree. The indictment charged him with having shot, with intent to kill, and wounded, one Frederick R. Hudson, at the town of Hoosick, in said county, August 23, 1883. The shooting took place in a drug store of the village of Hoosick Falls, in that town. The defendant having entered the drug store to summon the complainant to attend his wife, requested him to do so immediately, as she was quite sick; but the complainant then being engaged in a game of checkers behind a prescription desk in the store, simply replied : “ 1 will go and see her this morning,” that his office hours had not closed yet; and he not leaving his seat or stopping his playing, the defendant after some words, advanced toward him, and shot at him. The first ball did not take effect, and he afterward fired a second shot, which seriously wounded the complainant. The fact of the shooting was not denied by the defendant, nor was evidence offered by him to contradict that fact. The defense interposed was that of insanity. The indictment was sent from the September Oyer and Terminer to the October Sessions, and at that term the defendant appeared by his counsel, and made application for the case to go over the term, and read before the court an affidavit made by himself, alleging: “ That on September 17, 1883, the grand jury in and for the body, of the county of Eensselaer, found and presented to said court, an indictment against this deponent for assault in the first degree; that he liad fully and fairly stated the case to his counsel, . : . and that he had a good and substantial defense on the merits to said indictment, as he was advised, etc., after such statement made as aforesaid, as he verily believes to be true.” At the March term, 1884, his trial was moved and proceed writh. The ■ district attorney, through oversight, omitted formally to arraign him and to ask him to plead, and the trial continued through the whole of it without the entry of such formal plea upon the record in the usual way, although the defendant was present with his counsel during all the trial, and saw all the witnesses as they were sworn and testified. His counsel cross-examined the people’s witnesses, and then presented for the defendant, the plea of insanity in avoidance of the alleged crime. He then made his defense, and his counsel summed up his case to the jury. The jury found him guilty, and he was remanded for the judgment of the court before the question of arraignment and plea was raised.
    The only exception which brings up this question for review, was made after the verdict, by defendant, when he was brought before the court for judgment. It was obtained upon the denial of a motion in arrest of judgment, and to show cause why the judgment should be not pronounced upon him upon these grounds: First. That the defendant never had been arraigned upon the indictment whereupon he was tried. Second. That lie never had pleaded thereto, nor had he refused to plead thereto. Third. That no issue of fact was joined at the time of trial.
    
      Orrm G/MrAell, for defendant, appellant.
    
      La Mott W. Rhodes, district attorney, for the people, respondent.
   Learned, P. J.

The prisoner was duly indicted for assault in the first degree. He was tried at the Court of Sessions and convicted. No question is made as to any improper evidence, or error in the charge, or defect in the jury. The only point made is that the prisoner was not formally arraigned and did not formally plead. He was present with his counsel throughout the trial, and did not object that lie had not been arraigned, and did not ask to plead. After the close of the trial, and after the verdict had been rendered and the jury had been discharged, and on the following day this point was first made, and made by a motion in arrest of judgment.

It is manifest that no injury has been done the defendant. No plea has been rejected; no evidence offered by him has been excluded. The defect is merely technical, affecting no rights whatever. If he had refused to plead, the trial would have proceeded just as it has. The trial would not be affected because of an imperfection in the indictment, which did not tend to the prejudice of the substantial rights of the defendant upon the merits. Code Crim. Pro. § 285.

Nor may this court, on appeal, regard technical errors, or defects, or exceptions which do not affect substantial rights. (§ 542.) If this section is to have any meaning at all, it applies exactly to a case like the present. No suggestion is made by the able counsel who has presented the defendant’s case that any substantial rights upon the merits have been affected. Every one who knows anything of a criminal trial, must see that the omission did the defendant no harm. The arraignment was certainly a matter which a prisoner could waive. Pierson v. People, 79 N. Y. 424. And he need not plead unless he desires to do so. (§ 342.) Especially in a case where the prisoner appears with his own counsel an omission formally to arraign and to ask for a plea is immaterial to his rights and may be deemed to be waived.

Again, the grounds of motion in arrest of judgment are defects in the indictment. (§ 467.) These are stated in sections 331, 333. The omission to arraign or to ask the defendant to plead, is not, and could not be, one of the defects in the indictment.

Cause against the judgment maybe shown before sentence: First, insanity. Second, good causé in arrest of judgment. (§ 481.) The prisoner does not show insanity; and for the causes in arrest of judgment we must refer to section-467, as above.

The court below could have granted a new trial for the reasons stated in section 465. Hone of those exist here.

Under section 517 this court on appeal can review any intermediate order forming part of the judgment roll. By section 485 the roll may contain the bill of exceptions. When then we examine the bill of exceptions to see if any error was committed we find that the only alleged error was a refusal to arrest the judgment after trial. Ho other exception presents the point which the defendant urges. And we have already seen, by examination of section 467, that such a motion must be for defects in the indictment.

But the defendant urges, that the appeal brings up the roll apd that this should contain the minutes of the plea. (§ 485.) That the. judgment roll does not show that the defendant was arraigned or pleaded. That is true. Ho arraignment or plea appear in the roll. Section 527 (as amended chap. 360, Laws, 1882) permits the ordering of a new trial, whether or not an-exception has been taken. But that is where justice requires it, which it does not in this case. People v. D’Argencour, 95 N. Y. 624; 2 N. Y. Crim. Rep. 267. We come then to this question : Must the court reverse a judgment of conviction on a verdict when the judgment roll fails to show an arraignment or a plea; while the bill of exceptions shows that the prisoner was present with his counsel and had a fair trial ? We think not. We think that the spirit of the Code does not favor, and we are sure that court ought not to favor technicality.

The learned counsel for the defendant has cited many cases in other states, holding that the omission of arraignment and plea is sufficient ground for reversal of the judgment. We do not think it necessary to discuss these cases. Decisions of other states are not precedents for us.

They are useful to show to what conclusion the minds of able judges have come; and of course they deserve respect. But we are not bound by them. In the absence of any decision in our own state directly applicable, we must be governed by our own judgment of the law as stated in the Code, and as. illustrated by the broad views given in the opinion in Pierson v. People, supra. A prisoner should have everything needed to a fair trial. But when he has had such a trial he should not escape punishment by reason of some omission of some technical proceeding, which, if not omitted, would have done him no good.

The judgment and conviction should be affirmed.

Bookes and Landon, JJ., concur.  