dissent">*557BIEGELMEIER, Judge

(dissenting).

In State v. Fullerton Lumber Co., 1915, 35 S.D. 410, 152 N.W. 708, three corporations and several individual defendants were named as such in the title as Rude is named defendant in the present case; defendant Jordan's name was omitted in the charging part of the indictment as defendant Rude in this action; later in the indictment Jordan's name appears only to name him as one of the agents and employees of the Fullerton Lumber Company.

In Fullerton, as the court opinion states, "the name of James Jordan was omitted from one place in the body of the indictment (the charging part) where the other defendants are named, although his name appears as a defendant in the title of the cause, and also at another place in the body of the indictment. Because of these omissions, these two defendants objected to the trial proceeding as against them, and now contend that they are not included as defendants in the case, that it cannot be said, from the indictment, that the grand jury intended to make them parties to the action, and that, as to them, such omissions are fatal to the indictment."

It will be seen therefore that defendant Jordon in Fullerton raised an objection at the trial that was not raised in the present appeal. Nevertheless, this court held that under code sections there cited and quoted and presently the same that the "defects complained of appear upon the face of the indictment, and, the defendants not having demurred thereto, they were precluded from raising the question at the trial" or on appeal. In addition to the code provisions cited in the majority opinion see also SDC 1960 Supp. 34.3514 as to grounds of demurrer and SDC 1960 Supp. 34.3677, functions of motion in arrest of judgment.

We should follow not depart from or overrule the law announced in the Fullerton opinion which does not permit a defendant, as here, to sit back for nearly two years from indictment to trial and, after conviction by a jury of all five counts in the indictment, then raise objection at so late a time. The statutes and constitutional provisions therein involved being the *558same as those today, I believe our decision should be the same. It was sound law when written and remains sound now. Therefore, I am compelled to dissent.

I am authorized to ’state that RENTTO, J„ joins in this dissent.

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