· umrrzn surns v. Monnor. 23
(section 1025) that "no indictment found and presented by a grand jury,"
etc., * * * "nor shall the trial, judgment, or other proceedings
thereon, be affected by reason of any defect or imperfection in matter of
form only, which shall not tend to the prejudice of the defendant." I
am aware that, putting a narrow construction on that section, it might
be said that it refers only tosa defect in the form of the indictment; and
yet it is, obvious to my mind, from the whole tenor of the federal stat-
utes, that it has, or was intended to have, a broader significance, and to ·
declarethat no mere irregularity or defect in the form of the proceed-
ings which did- not tend to the prejudice of the defendant should be
ground for a new trial.
. It is a well-known fact that by the common law, differing in that re-
spect from the rule which obtains under the state statutes, an application
for a new trial in civil cases presents no matter of right, but is simply an
appeal to the discretion of the court, and, when that is exercised one
way or the other, the decision is not subject to review. And that is the
effect of the statutes of congress as interpreted by the decision of the
supreme court, they holding in two or three late cases (Radroad Co. v.
Horst, 93 U, S. 291;, Newcomb v. Wood, 97 U. S. 584; ,Co_;7`ey v. U. S.,
117 U. S. 235, 6 Sup. Ct. Rep. 717,) that this matter of new trials in
civil cases depending upon the discretion of the trial court is some-
thing which is settled by the law of congress, and cannot be affected by
, any state law. If it be true, as I think must be apparent to any one,
' that the `failureto formally arraign the defendant in this case was fmt a
matter which tended to his prejudice, that by that failure he was not
deprived of a single substantial right, that he was not put to trial with-
out fulltnotice of that for which he was to be tried., that he was not
caught by any surprise or in any other way, it would, as Chief Justice V
HENRY well says, seem to be "like triiiing with justice" todisturb the
solemn verdict of the jury, and send the case to`a new jury toreview the
same facts on another trial. I ( »
So, by reason of the provisions of the federal statute determining the
courseof procedure in this court, although we recognize the fact that that
is different from the rulewhich obtains in the state courts under the state
statute, we agree that the motion for a new trial should be overruled,
1 and it is so ordered. ~ I j ,,_,__,,_,,  ( _
THAYER, J. I concur in the ruling that the failure of the record to
I show a formal arraignment of the defendant is no ground, under the cir-
cumstances of this case, for granting a new trial., While the rule is firmly
established in the state of Missouri that the court of last resort will award
anew trialyin all criminal cases, whether of felonies or misdemeanors,
if the record fails to show a formal arraignmcnt, (State v. Vemhook, 88 Mo.
105; State v. Jaques, 68'Mo. 260, and State v. Sazmders, 53 Mo. 234,) yet
"I regard our action in this case as controlled by a federal statute. Sec-
tion·t 1025, Rev. St. U. S., provides that "no indictment found shall be
deemed insufficient, nor shall the trial, judgment, or other proceeding
thereon be affected, by reason of any defect orrimperfection in matter of