Appellants were brought before a justice of the peace under arrest for a hearing upon a charge of having committed a felony preferred by an affidavit. Acts 1905, ch. 169, § 72, § 2102 Burns 1926. At the hearing, appellants waived arraignment, and the accused were recognized by the justice of the peace to appear at the next term of the circuit court.
In the circuit court, the accused were brought to trial upon the same affidavit that theretofore had been filed with the justice of the peace, and upon which accused were so recognized to appear at the circuit court. After trial, a verdict of guilty was returned, upon which judgment for the State was rendered, all without an arraignment of either of appellants, or a plea to the charge by either of them. Acts 1905, ch. 169, § 197, § 2232 Burns 1926.
The circuit court did not enter a plea of not guilty for either of appellants.
On appeal, appellants present error upon the action of the trial court overruling their motion for a new trial, for the cause that the verdict of guilty returned by the jury is 1. contrary to law. On authority of Andrew v. State (1925), 196 Ind. 12, 146 N.E. 817, and Sabo v. State (1926), 197 Ind. 210, 150 N.E. 103, the ruling of the court complained of was erroneous. *Page 82
Cause remanded, with instructions to sustain appellants' motion for a new trial.
Judgment reversed.