#### Meyers *v.*The State.

[No. 19,560.

Filed March 29, 1901.]

Criminal *Law.*— Plea *of Guitty.*— Motion *for New Trial.*— Where a defendant pleads guilty to a charge of grand larceny, and judgment is rendered against him, a motion for a new trial is ineffectual. In such case an application should be made to the court to vacate the judgment,‘and for leave to withdraw the plea. *p. 388.*

*Same.*— Plea *of Guilty.*— Trial:—A plea of guilty is a confession of the charge, and judgment is rendered thereon without a trial of any issue of law or fact. *p. 388.*

*Same.*— Plea *of Guilty.*— Arraignment.—Waiver.—Where a defendant appears and pleads not guilty without an arraignment, he waives the arraignment, *p. 389.*

.Prom the Wabash Circuit Court.

*Affirmed.*

*D. F. Brooles,*for appellant.

*W. L. Taylor.,*Attorney-General, *G. G. Hadley, Merrill Moores*and *J. W. Murphy,*for State.

Dowling, C. J.

The appellant was prosecuted upon an information and affidavit for grand larceny. He pleaded' guilty,-and the court rendered judgment against him in accordance with the statute. At the same term of the court, tiie appellant filed a motion for a new trial, stating as reasons therefor that the j'udgment was contrary to law; that the evidence was insufficient; that the judgment was rendered without evidence; that there was no trial; that the -appellant was- intoxicated when he entered his plea of guilty; that he was a minor; that he had not waived a trial by a jury; and that, since his conviction, he had discovered material evidence, etc.

Where a plea of guilty has been entered, a motion for a new trial is ineffectual. ' In such a ease an application should be made to the court to vacate the judgment, and for leave to withdraw the plea. A plea of guilty is a confession of the charge, and judgment is rendered thereon without a trial of any issue of law or fact, It is said that it is a contrad’ic*389tion of terms to speak of a new trial in a cause -where there has been *no*trial. *Fisk*v. *Baker, 47*Ind. 534; *Reed*v. *Spayde,*56 Ind. 394; *Corwin*v. *Thomas,*83 Ind. 110; *Ervin School Tp.*v. *Tapp,*121 Ind. 463.

While the plea stands,, the judgment must follow.the plea. ■ It has always-been held in civil cases that-where, judgment has been rendered upon- a default or confession, the defendant krast first move to set aside the default before,’taking other steps. *Briggs*v. *Sneghan,*45 Ind. 14. A similar rule •applies in criminal procedure. A plea of guilty cannot be ■ withdrawn without’ the 'leave of the court. *Peters v. Koepke, ante,*35, and cases cited. But, upon a sufficient showing .the court may vacate the judgment, and grunt leave to withdraw the plea. *Sanders*v. *State,*85 Ind. 318, 44 Am. Rep. 29; *Myers*v. *State,*115 Ind. 554. The motion for a new trial presented no question the court could .consider, and there was no error in overruling it. ■

Where a trial is had, a motion for a new trial on the ground that the verdict or finding is contrary to law. enables the defendant to raise the question whether there was an arraignment. *Bowen*v. *State,*108 Ind. 411. But where a defendant appears and pleads not guilty’ without an arraignment, he waives the arraignment. *Sohn*v. *State,*18 Ind. 389; *Stewart*v. *State,*111 Ind. 554. So, too, a plea of guilty waives a formal arraignment.

The sufficiency of the affidavit and information is' discussed by counsel for appellant, but no question- of this land is presented by the assignment of errorá, and; therefore, we cannot consider it. We find no error in the record. ’Judgment affirmed'. ■