State v. Patton

GOODE, J.

The transcript of the record in this case shows that on the first day of May, 1901, three informations were filed in the office of the clerk of the. circuit court of Butler county, against the appellant Edward Patton, each of which charged him with the offense of selling intoxicating liquor without having taken out a license as a dramshopkeeper. These cases were afterwards consolidated and tried as one case by the court sitting as a jury and appellant fined two hundred dollars for each offense; judgment was entered accordingly and an appeal taken to this court.

Only one assignment' of error is made: the refusal of the court to hear oral testimony on the motion in arrest of judgment tending to prove the informations were not verified by the oath of the prosecuting attorney or any one else at the time they were filed; that the affidavit of David W. Hill, appended do each of the informations, was made on the eighth day of May, 1902, instead of the first day of said month, and that -the jurats of thé circuit clerk of said court certifying they were subscribed and sworn to before him on the first day of Alay, were attached by mistake.

This point was not raised until after the trial when it was first sprung in appellant’s motion in arrest. The informations on their faces as they stand in the record, appear to have been properly verified at the date of their filing accord *35 ing to the jurats of tbe circuit clerk. No defect is apparent on the face of the record to be reached by a motion in arrest of judgment, and it would have been inadmissible for the court to receive evidence on the hearing of said motion attacking the validity of the record, as the evidence would have been useless unless a wider scope is given to the motion in arrest than is permitted by law. Such motions reach only defects apparent on the face of the record. Wharton’s Criminal Pleading and Practice, sec. 759; Bishop’s New Criminal Procedure, sec. 1285. In this connection a subtle distinction is attempted by the counsel for the appellants in the several cases pending before us that involve that point, on the theory that as the affidavits were not affixed until after the informations were filed, the affidavits are really no part of the record and if the record is considered without them, as the circuit court should have done, defective informations are shown which were vulnerable to a motion in arrest. The answer to this refinement is that the record before the circuit court, when the motion in arrest was filed, showed the informations to be duly verified and the verifications attested by the jurat of the clerk. The face of the record was fair and complete, and the contention of the appellant that a part of it could be stricken out on oral evidence at the hearing of said motion and the motion then sustained because of a defective record, involves the notion that a motion in arrest may be used to alter the record of a cause, which is not the law.

It is conceded that' the informations were properly verified before the trial and omitting to verify them before filing was, in the circumstances, an irregularity which was cured by the judgment. A more harmless error — one less prejudicial to a defendant — can hardly be conceived and we think the irregularity falls within the curative efficacy of section 2535, Revised Statutes 1899, the last clause of which provides that no indictment or information shall be deemed invalid, nor shall the trial, judgment, or other proceeding therein be stayed, ar *36 rested or in any manner affected for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

The judgment is affirmed.

All concur.