Burrell v. The State
| Decision Date | 10 October 1891 |
| Docket Number | 15,917 |
| Parties | Burrell v. The State |
| Court | Indiana Supreme Court |
From the Orange Circuit Court.
Judgment affirmed.
F Branaman, T. B. Buskirk and B. H. Burrell, for appellant.
A. G Smith, Attorney General, W. T. Branaman, Prosecuting Attorney, for the State.
The appellant was convicted of an assault and battery with intent to kill. He insists that the judgment of conviction is erroneous, upon several grounds. His first contention is that the grand jury which indicted him was illegally selected and empanelled. This question he raised by a plea in abatement, to which the circuit court sustained a demurrer. The record shows that six grand jurors were regularly drawn by the clerk and jury commissioner, but that only three of them appeared, one of whom was excused. The reason for his excuse is not shown by the record. The number necessary to complete the grand jury were then selected from the by-standers, and, after examination as to their qualifications, were sworn. It is not claimed that any member of the jury lacked any legal qualification, or that any fraud was practiced in their selection.
Section 1649, R. S. 1881, authorizes the court to excuse grand jurors from attendance for certain reasons. When a grand juror is excused by the court, and the reason for his excuse is not shown by the record, it will be presumed that he was excused upon some of the grounds prescribed by the statute.
Section 1651 authorizes the court, when a full jury does not attend, to complete the number from the by-standers. When the power is given to excuse a juror, the power to fill the vacancy thus occasioned, by another, possessing the necessary qualifications, is also conferred by necessary implication. The demurrer to the plea in abatement was correctly sustained.
The cause was tried before Hon. S. B. Voyles, acting as special judge, or judge pro tem., of the Orange Circuit Court. The appellant contends that his appointment was without authority and void. The question is properly saved and presented. The order appointing the special judge is spread upon the record, and is as follows:
Then follow an acceptance of the appointment and the oath of office.
The appellant's objection to the validity of this appointment is based on the assumption that the only authority for appointing a judge pro tem. is found in section 1381, R. S. 1881. In this he is in error. It has been several times decided by this court that section 4, of the act of March 1st, 1855 (2 Davis Stat. 10), is still in force, except in so far as it is in conflict with the act of March 7th, 1877 (Acts 1877, p. 28), and that such appointments as that in question herein are still authorized by it. Zonker v. Cowan, 84 Ind. 395; State, ex rel., v. Murdock, 86 Ind. 124; Bowlus v. Brier, 87 Ind. 391.
The appellant also questions the jurisdiction of the Orange Circuit Court.
The indictment was returned and the prosecution was commenced in the Jackson Circuit Court. On motion of the appellant the venue was changed to the Orange Circuit Court. The order granting the change of venue was made August 19th, 1889, and the clerk was ordered to make out and transmit a transcript and the files to the Orange Circuit Court. The transcript was filed in the office of the clerk of Orange Circuit Court September 20th, 1889, but was defective.
The record of the Orange Circuit Court shows that on the 14th day of October, 1889, which was the first day of the October term, 1889, of that court, the cause was continued "by consent of parties."
At the January term, 1890, of the Orange Circuit Court, the court, on motion of the prosecutor, in the absence of the accused, granted a rule against the clerk of the Jackson Circuit Court to amend the transcript. To this counsel for the appellant, who were present, objected, and an exception was saved. March 6th, 1890, an amended and corrected transcript was filed. On the 17th day of March the appellant moved to quash and strike out the transcript. The motion was overruled, and an exception saved.
It is upon these facts that the appellant questions the jurisdiction of the Orange Circuit Court.
When the change of venue was granted and the cause ordered transferred to the Orange Circuit Court, it became the duty of the clerk of the Jackson Circuit Court to make and transmit a correct transcript, together with the files. Whenever he learned in any manner that he had forwarded an imperfect transcript, he had the right, and it was his duty, to correct his mistake, and thus comply fully with the order made. It is therefore not material whether the Orange Circuit Court was, or was not, authorized to make an order requiring him to do his duty. It is not denied that the last transcript is correct and complete.
In our opinion, if the appellant was in a position to raise...
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