Block v. State

• Decision Date: 25 February 1885
• Docket Number: 11,963
• Parties: Block v. The State
• Court: Indiana Supreme Court

100 Ind. 357

Block v. The State

No. 11,963

Supreme Court of Indiana

February 25, 1885

From the Decatur Circuit Court.

The judgment is reversed, and the cause remanded for a new trial.

W. A Cullen, B. L. Smith, C. H. Blackburn, J. K. Ewing and C Ewing, for appellant.

F. T Hord, Attorney General, M. D. Tackett, Prosecuting Attorney J. D. Miller and F. E. Gavin, for the State.

OPINION

Niblack, J.

An indictment was returned in the Rush Circuit Court against Jacob Block and Elsie Block, charging them with having killed Eli Frank, on the 30th day of November, 1883, under circumstances which constituted the homicide murder in the first degree.

A change of venue was taken to the Decatur Circuit Court, where Jacob Block, the appellant here, was tried separately, the trial resulting in a verdict of guilty of murder in the second degree, and a sentence to the State's prison for life.

After the return of the verdict, an ineffectual motion for a new trial was made upon the alleged ground, amongst others, that Sanford Grayson, one of the jurors who tried the cause, was an incompetent juror, and that the fact of his incompetency did not come to the knowledge of the appellant until it was too late to avail himself of it at the trial.

The particular objection urged to Grayson's competency was, that at the time of the trial he was deputy prosecuting attorney for one of the townships of Decatur county, under the prosecuting attorney who conducted the prosecution on behalf of the State. To sustain that objection, a copy of his appointment was exhibited as a part of one of the affidavits filed upon the occasion, which was as follows:

"State of Indiana, Decatur County:

"I, Marine D. Tackett, prosecuting attorney of the Eighth Judicial Circuit of Indiana, of which Decatur county forms a part, hereby constitute and appoint Sanford Grayson deputy prosecuting attorney in and for Sand Creek township, in said county, to act for me and in my stead in any and all matters in which the State of Indiana is or may be a party, and to charge and receive all moneys and fees allowed the prosecuting attorney for services by law, the same as if I myself was present.

Marine D. Tackett,

Pros. Att'y 8th Judicial Circuit."

"Jan. 11, 1883.

It was further shown by affidavit that at the time Grayson was called and sworn, neither the appellant nor his attorneys knew that Grayson held any position under the prosecuting attorney, and that for that reason he was not interrogated as to the relations which he sustained to that officer.

It was admitted that at the time of his service as a juror, Grayson was deputy prosecuting attorney as charged, but, in support of the verdict, he made affidavit that he was not regularly engaged in the practice of the law; that when he was called as a juror, it did not occur to him that his position as deputy prosecuting attorney for a township merely was or might be considered as constituting an objection to his competency, and that hence he did not call attention to the fact that he held the position; that his holding the position had no influence whatever upon him in making up the verdict which the jury returned.

The important, and, as we conceive it to be, the controlling, question in this case is, Was Grayson, under the circumstances, a competent juror?

Section 58 of the Bill of Rights, which constitutes a part of our State Constitution, declares that "In all criminal prosecutions the accused shall have the right to a public trial by an impartial jury in the county in which the offence shall have been committed," etc.

Section 1793, R. S. 1881, provides that "The following, and no other, shall be good causes for challenge to any person called as a juror in any criminal trial:"

First. That he was a member of the grand jury that found the indictment.

Second. That he has formed or expressed an opinion as to the guilt or innocence of the defendant, but specifying and defining certain exceptions to that general disqualification.

Third. That he entertains conscientious opinions against affixing the death penalty in cases in which it might be inflicted.

Fourth. That he is related within the fifth degree to the injured party.

Fifth. That he has already served as a petit juror in the same cause.

Sixth. That he has served as a juror in a civil case involving the same transaction.

Seventh. That he has been, in good faith, summoned as a witness in the cause.

Eighth. That he is an habitual drunkard.

Ninth. That he is an alien.

Tenth. That he has been called to sit on the jury at his own or some one else's solicitation.

Eleventh. That he is biased, or prejudiced, either for or against the defendant.

Section 1794 of the same Revised Statutes directs that "All challenges for cause shall be summarily tried by the court on the oath of the party challenged or other evidence, and shall be made before the jury is sworn."

On behalf of the State, it is argued that a juror in a criminal cause can be challenged for no other causes than those specified in the foregoing section 1793, and that under section 1794 no objection can be made to the competency of a juror after he has been sworn, unless his incompetency was concealed in such a way as made the concealment amount to such misconduct on the part of the juror as tended to prevent a fair trial.

A person, to be qualified as a juror, must be a voter of his county, and a freeholder or householder. R. S. 1881, section 1393. It is a felony for a juror, either before or after he is sworn, to accept a bribe, for which he, amongst other penalties, may be disfranchised for a period of time. R. S. 1881, section 2010. It is, also, fairly implied, that one called as a juror is a person of sound mind, of reasonable intelligence, and able to understand the English language. It will not do, therefore, to hold that either party to a criminal prosecution may be compelled to accept any person as a juror who is not a voter of the county, is not either a freeholder or householder, has accepted a bribe in advance, is of unsound mind, is not of reasonable intelligence, or can not understand the English language.

The right of trial by an impartial jury carries with it, by necessary implication, the right to be tried by a capable, as well as a duly qualified, jury. It, consequently, follows that objections, in the nature, at least, of challenges for cause, other than those enumerated in section 1793, supra, may be made to the competency of a person called as a juror. This construction appears to us to be inevitable, when the separate parts of our judicial system are considered together as a whole.

On that subject, Thompson & Merriam on Juries, at section 175, say: "Certain causes of challenge enumerated in a statute are not exclusive of all others. The grounds of challenge for cause are so various that any attempt to collate them in a statutory provision must necessarily be only partially successful. Causes of a most positive character are liable to arise out of the facts of specific cases, which must result in a failure of justice if the statutory causes only are to be recognized. Such was the rule laid down by the Supreme Court of Alabama, which was afterwards departed from, and still later re-adopted. This rule exists in other States. It results from this consideration: The statutory causes of challenge correspond quite closely to what were termed principal causes of challenge at common law. But we have hitherto seen that a great variety of objections, not less positive in their character, might arise in any case, namely, causes of challenge to the favor, which in the words of Lord Coke were 'infinite.' Although many of the statutes make no reference to the challenge for favor, still it exists as a challenge for cause."

The doctrine thus enunciated really rests upon the theory that the competency of each particular juror has always very much been, and, in the nature of things, must, to some extent continue to be, a judicial, and hence not exclusively a legislative, question. ...