Anderson v. State

• Decision Date: 26 March 1941
• Docket Number: 27451.
• Citation: 32 N.E.2d 705,218 Ind. 299
• Parties: ANDERSON v. STATE.
• Court: Indiana Supreme Court

32 N.E.2d 705

218 Ind. 299

ANDERSON v. STATE.

No. 27451.

Supreme Court of Indiana

March 26, 1941

Appeal from Criminal Court, Marion County; Chas. B. Staff, Special judge.

Rochford & Rochford, of Indianapolis, for appellant.

Samuel D. Jackson, Atty. Gen., and Geo. B. Davis, Deputy Atty. Gen for appellee.

RICHMAN, Judge.

Appellant is an Indianapolis grocer who in 1939 and previous years filled relief orders issued by the trustee of Center Township in said city. A grand jury on December 1, 1939, found an indictment in two courts, the first charging appellant with having filed a false claim under § 10-2101, Burns' Stat.1933,§ 2745, Baldwin's Stat.1934, and the second with having by false pretense obtained the signature of the trustee 'to a certificate as to the correctness of a certain pretended claim in writing against said Center Township, * * * of the value of four and 05/100 ($4.05) Dollars,' this count being based on § 10-2103, Burns' Stat.1933, § 2747, Baldwin's Stat.1934.

After hearing evidence on a plea in abatement charging noncompliance with statutory provisions for selection of the grand jury, the court overruled the plea. A motion for change of venue from the county was overruled. A jury trial resulted in appellant's acquittal on the first count and conviction on the second. Motion for new trial was overruled. From the judgment sentencing appellant in accordance with the verdict, this appeal is taken. Of the errors assigned three are relied upon.

First is alleged error in overruling the plea in abatement. It appears that two grand jurors were selected from one panel of fifty, four from a second panel of fifty, and that two vacancies later occurred, which were filled from a third panel of twenty-five. In each of the first two instances the clerk of the court failed to comply with certain provisions of § 4-3320, Burns' Stat.Supp., § 1267-1, Baldwin's Supp.1937, the same being § 1 of 'An Act concerning proceedings in criminal and civil cases.', Acts 1937, ch 156, p. 839. In the third he did not strictly follow § 2-2004, Burns' Stat.1933, § 328. Baldwin's Stat 1934.

The departures from statutory procedure were that the clerk failed at the time of the first drawing then to enter the names drawn on the order book, that the second drawing did not have two full days' notice, and that in the third the clerk's entry was delayed. All matters were of record, however, on September 5, 1939, except the clerk's certificate to the last entry. The plea in abatement was filed December 8, and thereafter upon the order of the court the clerk's certificate to the record of the third drawing was entered as of the date of the drawing. In his plea setting up those irregularities appellant asserted by way of conclusion that they were probably harmful to his substantial rights, but the evidence taken on the plea went no further than to show the irregularities. He asserts further that he had no way of knowing that the members of the grand jury were the persons actually drawn or that vacancies did exist and the jurors substituted were the persons actually drawn for that purpose. He relies chiefly on Dale v. State, 1928, 200 Ind. 408, 164 N.E. 260 which enjoins strict compliance with the statute, while appellee points to§ 2 of the 1937 Act as curing the irregularities.

The probable purpose of the clerk's certificate required by § 2-2004, supra, was as a check to insure the accuracy of the record by one of the three persons participating in the drawing. The other provisions not strictly followed herein were by way of notice to the public and particularly to those bound over to or knowing themselves to be likely subjects of inquiry by the grand jury, so that seasonably they might protect their interests by challenge or otherwise.

Appellant disclaims any interest in this grand jury until notified of the indictment. At that time and for almost two months prior thereto all the records spoke the truth and were complete except for the certificate, which added nothing to the record except the clerk's verification. The delay of a few days in recording, the short notice of the second drawing, and lack of certification, while not to be commended as a practice for clerks, did not harm appellant in any way, substantial or otherwise, so far as he has shown.

At least since 1889 the rule in Indiana has been as stated by Judge Mitchell in Cooper v. State, 1889, 120 Ind. 377, 22 N.E. 320, 321, as follows: 'The intervention of mere irregularities in drawing and organizing the grand jury, which involve no charge of fraud or corruption, and which in no way prejudice the substantial rights of the defendant, assuming, in the absence of anything appearing to the contrary, that the body as constituted was composed of persons duly examined and qualified, and not subject to any of the statutory causes of challenge, is not available as a plea to abate the indictment. Whart. Crim. Pl. (9th Ed.) § 350; State v. Mellor, 13 R.I. 666.'

Judge Mitchell in Sage v. State, 1891, 127 Ind. 15, 26 N.E. 667, states the same rule in other language and cites as additional authorities Commonwealth v. Brown, 147 Mass. 585, 18 N.E. 587, 1 L.R.A. 620, 9 Am.St.Rep. 736 and Hardin v. State, 22 Ind. 347. The latter is based upon a statute, 1 R.S. 1852, p. 433, 2 R.S. 1876, p. 419, § 12, which disappeared from our compilations of statutes after 1876 but, Stipp v. State, 1918, 187 Ind. 211, 118 N.E. 818, to the contrary notwithstanding, may still be in force. See Williams v. State ex rel. Gudgel, 1882, 86 Ind. 400, 402. That statute merely expressed the legislative intent that the act of which it was a part should be directory. The same thing is true of § 2 of the Act of 1937. When a court has ascertained that intent, the determination of the effect of such legislation upon the rights of the parties in litigation is a judicial not a legislative function. This no doubt was understood by the eminent judges who wrote the opinions in the Cooper and Sage cases and, while the statute was cited in the briefs, the opinions put the rule on a judicial not a statutory basis. So whether or not § 12 of the Act of 1852 survived the repeal of the remainder of the act is an academic question.

The courts of Indiana have always protected persons charged with crime, upon their seasonable objection, against any interference with their substantial rights occasioned by improper organization of the grand jury. All the cases cited by appellant and those to which reference is made therein may be supported on the facts disclosed in the records and we have found none, including the Dale case, which was reversed because of irregularities not harmful to the appellant.

In Jones v. State, 1832, 3 Blackf. 37, the jury was selected by the board 'at their own discretion' without any compliance with the statute. Mitchell v. Denbo, 1833, 3 Blackf. 259, shows that the clerk never recorded the list of jurors. Both of these cases involved petit juries, although in the latter, at least, the same statutory procedure was prescribed for the selection of grand juries. The issue was so framed on pleadings in Vattier v. State, 1835, 4 Blackf. 73, that this court had to assume that the statute was not followed in any respect. In State v. Herndon, 1839, 5 Blackf. 75, one grand juror was not a freeholder or householder as required by the statute. In Shattuck v. State, 1859, 11 Ind. 473, the question was whether the presence of a prosecuting attorney had improperly influenced a grand jury after it had been organized and sworn.

Stipp v. State, supra, strongly relied upon by appellant, shows that no attempt was made to follow the statute, but the bailiff was sent to get a person chosen by the judge to fill a vacancy.

In Walter v. State, 1935, 208 Ind. 231, 195 N.E. 268, 270, 98 A.L.R. 607, it was held that jury commissioners have no power 'to exclude from jury service a class of citizens [women] that the Legislature has included among those eligible.' Here a petit jury was in question.

A plea in abatement was sustained in State v. Bass, 1936, 210 Ind. 181, 1 N.E.2d 927, where it appeared that names selected by former jury commissioners were left in the box when the new names were placed therein, that the box was left in an exposed place where names could easily be placed therein, that the name of one of the jury commissioners was twice drawn when it could not properly have been in the box, and that two of the names drawn were of persons who had been active in a movement to call this grand jury to investigate the matters in which the specific indictments were returned.

Souerdike v. State, 1938, 214 Ind. 523, 15 N.E.2d 379, also cited by appellant, involved the drawing of a petit jury and it is shown that the court ordered a secret drawing of a special venire especially directing the clerk, commissioners and the sheriff, who was the prosecuting witness, that the names of the talesmen be not furnished either to the state or defendant until the sheriff made his return on the special venire. We stated that this was improper but held that the objection was waived because not presented at the proper time.

In the Dale case, supra, the opinion does not state all the facts. From the plea in abatement held good therein we quote as follows: 'That no list of any names drawn for the January Term, 1923, of said Court grand jury, was by the clerk of said court nor by any one else at any time entered on the Order Book of said Court, nor was there any such list at all; and the said Clerk of Said Court did not at any time make and certify to any list of names whatever on the Order Book of said Court, as the names of the grand jurors chosen selected and drawn for service on the grand jury for the January Term 1923, of said Cour...