Affirming.
Roy Dabney was indicted, tried, and convicted for the crime of seduction. He has appealed to this court, complaining that the trial court failed to require the indictment to be read and the plea of defendant stated to *Page 120 the jury after it was sworn. The record shows that the defendant appeared in person, and, by attorneys, waived a formal arraignment and pleaded not guilty as charged in the indictment. It further shows that both sides announced ready for trial, and a jury was impanelled and sworn. The bill of exceptions manifests that counsel for the commonwealth and the defendant respectively stated the case to the jury. The testimony was fully heard and strictly confined to the issue made by the indictment and the plea of not guilty. The jury was adequately instructed, and a verdict returned, responding literally to the charge, saying:
"We, the jury, find the defendant, Roy Dabney, guilty as charged in the indictment, and fix his punishment at two years in the state penitentiary."
No objections or exceptions on the part of the defendant to a failure, if there was a failure, to read the indictment to the jury or to state his plea, appear in the bill of exceptions. The bill of exceptions does not show affirmatively any such omission. After the verdict, the defendant filed a motion and grounds for a new trial and his own affidavit in support thereof. The alleged ground for a new trial was the failure of the commonwealth's attorney, or the clerk, or any other person, to read the indictment to the jury or to advise the jury of the defendant's plea. The affidavit of the defendant stated that at no time after the jury was sworn was the indictment read or the defendant's plea of not guilty stated to them.
The Constitution, sec. 11, provides that, in all criminal prosecutions, the defendant has a right to demand the nature and cause of the accusation against him. Section 154 of the Criminal Code defines an arraignment as the reading of the indictment by the clerk to the defendant, and asking him if he pleads guilty or not guilty thereto. Section 155 of the Criminal Code provides that the arraignment shall be made only upon indictment for felony, and may be dispensed with by the court with the defendant's consent. Section 219 of the Criminal Code provides that the clerk or commonwealth's attorney shall, after the jury is sworn, read to it the indictment and state the defendant's plea.
In Galloway v. Commonwealth, 4 Ky. Law Rep. 720, Id., 5 Ky. Law Rep. 213, it was said that the language of section 219 of the Criminal Code is mandatory, and that no one could be legally convicted unless the statutes were *Page 121
substantially complied with at the trial; but the court held in that case that the error was cured by a reading of the indictment and an announcement of the plea before the close of the trial. In Hendrickson v. Commonwealth, 64 S.W. 954, 23 Ky. Law Rep. 1191, it was held that the provisions of the Criminal Code were peremptory, and, if not substantially complied with, a conviction could not be allowed to stand. In Farris v. Commonwealth,
In Meece v. Commonwealth,
"The purpose of the Code provision in requiring the indictment to be read and the plea of the defendant stated is to inform the jury at the very inception of the case of the nature of the charge and *Page 122 the plea of the defendant thereto; and when this is substantially done, although the Code is not literally followed, it will not amount to reversible error. And, aside from this, though the record fails to show that the indictment has been read or the defendant's plea announced to the jury, such omission will not authorize this court to assume that these requirements of the Criminal Code have not been complied with, unless it is made to appear from the record that the failure of the trial court to have the indictment read and the defendant's plea stated to the jury has been excepted to and relied on by the defendant as a ground for a new trial."
In Reed v. Commonwealth,
The purpose of the law is fully satisfied when the defendant is informed of the issue which he has to meet, and the jury is advised of the charge it is called upon to try.
If there has been an omission at the trial which the defendant considers prejudicial to him, he should call it to the attention of the court, and demand a compliance with the law. If the request is refused, an exception must be taken and noted in the bill of exceptions. Criminal Code, sec. 282. Otherwise it is not available here. Dalton v. Commonwealth,
The bill of exceptions is controlling, and may not be supplemented, contradicted, or impeached by affidavits of the appellant or others. Alexander v. C. N. O. T. P. Ry. Co.,
A judgment of conviction may not be reversed, unless the record manifests some error of law to the prejudice of the appellant's substantial rights. Criminal Code, sec. 340; Moore v. Commonwealth,
The judgment is affirmed. *Page 123