¶1 (concurring in result) : I concur in affirming the judgment of the Circuit Court, but I do not think that the opinion of Mr. Justice Watts fully meets the objection interposed by the defendants.
¶2 The arraignment of a defendant consists of the formality of having him plead to the indictment; it is the first step in the trial, and logically must precede the presentation of the jurors. After the jury has been completed, the Clerk addresses the jury in what is commonly called “charging the jury,” beginning with the statement: “Gentlemen of the'
¶3 jury, who have been sworn, look upon the prisoner at the bar and hearken to his charge.” He then practically reads the indictment to the jury, informing them of the particulars of the charge. It does not appear in the record for appeal whether or not this last formality was complied with. We must assume that it was. Its absence is not the ground of the objection, as seems to be assumed in the opinion of Mr. Justice Watts. The objection, as I understand it, is that the formal arraignment, as above defined, did not occur until after the jury had been impaneled, having no reference at all to the charge by the Clerk to the jury.
¶4 These is conflict in the authorities upon the question whether or not the failure to arraign the defendant before the jury is drawn and sworn is a fatal omission, as will be seen in 16 C. J., 389. I think that the proper rule is'that the verdict will not be set aside for this reason, particularly when the defendant fails to object to a trial before the jury *361 already impaneled. The defendant should not be allowed to take his chance of a favorable verdict before the jury sworn, and after an unfavorable one raise the objection which he should have raised in the first instance. See 16 C. J., 389, and the cases cited in note 65.
¶5 I do not think that it can be said in this case that the defendant waived the arrignment, as declared in the opinion.