Bush v. State

• Decision Date: 13 October 1920
• Docket Number: No. 23221.,23221.
• Citation: 189 Ind. 467,128 N.E. 443
• Parties: BUSH v. STATE.
• Court: Indiana Supreme Court

189 Ind. 467

128 N.E. 443

BUSH

v.STATE.

No. 23221.

Supreme Court of Indiana.

Oct. 13, 1920.

Appeal from Criminal Court, Marion County.

Dennis J. Bush was convicted of assault and battery, and appeals. Affirmed.Michael A. Ryan, John C. Ruckelhaus, Russell J. Ryan, Joseph B. Kealing, and Martin M. Hugg, all of Indianapolis, for appellant.

Ele Stansbury, Elmer E. Hastings, and Alvah J. Rucker, all of Indianapolis, for the State.

MYERS, C. J.

In the Marion criminal court, Dennis Bush, Robert Walters, Otto Jones, Hugh Costello, and Dolph Staub were jointly indicted for an assault and battery upon one Ralph E. Richman. Bush requested and was granted a separate trial before a jury, found guilty, and sentenced to pay a fine of $900 and to imprisonment at the Indiana State Farm for four months. The overruling of appellant's motion for a new trial is the only error relied on for a reversal of the judgment.

Appellant first insists that his motion for a new trial should have been sustained, for the reason that, as shown by his bill of exceptions, on July 3, 1916, the first day of the July term of the Marion criminal court, three persons of the 12 drawn to serve as the regular jury panel for that term were absent, whereupon the court made an order, duly entered of record, commanding the sheriff of Marion county to summon three persons to serve as petit jurors for that term of court. On July 10, 1916, the sheriff of Marion county, in obedience to such order, summoned Fred Sturm, Charles Kuhler, and John Steinmetz, and accordingly made his return. Pursuant to the court's order, the names of the three persons so summoned were entered upon the records of the court as members of the regular panel for the July term.

On October 24, 1916, and at the July term, appellant's case was called for trial. It appears from the voir dire examination of the three persons named that each of them had not served as jurors within a year, except in certain cases theretofore tried at that term of the Marion criminal court. Appellant challenged each of these persons separately for cause, upon the ground that each had served upon a jury within a year and within a period of two months, and that neither of them was a member of the regular panel. The court overruled these challenges, whereupon appellant peremptorily challenged Sturm, Steinmetz, and Juror Elmer Cooley, thereby exhausting his right to such challenges. He then, and before the jury was sworn to try the cause, renewed his challenge to Juror Kuhler for cause upon the grounds heretofore stated. This challenge was overruled, and the jury, with Kuhler as a member thereof, was then sworn to try the cause.

[1] Appellant has assigned as causes for a new trial the rulings of the court on his challenge for cause directed to Sturm and Steinmetz; but, as they were removed from the jury by peremptory challenge no harm resulted to appellant on account of these rulings. Beck v. State, 185 Ind. 51, 110 N. E. 212.

[2] The overruling of appellant's challenge to Juror Kuhler is also assigned as a cause in his motion for a new trial, and is therein stated as “an error of law occurring at the trial.” The state makes the point that the trial did not begin until the jury was impaneled and sworn; consequently the alleged error of which appellant complains did not occur at the trial.

[3] Section 2158, Burns 1914, prescribes various causes for which a new trial may be granted. One of the causes thus provided (clause 7) is for “error of law occurring at the trial.” The ruling now under consideration, as we have seen, was specifically assigned as a cause for a new trial under clause 7, supra, and not under clause 1, as appellant would have us treat it. We must assume that the court below ruled on the motion as presented by the record before us, and for us not to do so would be a violation of a long-settled rule in this jurisdiction, that every reasonable presumption should be indulged in favor of the jurisdiction, rulings, and regularity of the proceedings of the trial court. New York, etc., R. Co. v. Shields, 185 Ind. 704, 112 N. E. 762. We would have a different proposition if this ruling had been brought under clause 1, supra. Collett v. State, 156 Ind. 64, 59 N. E. 168. Hence the question, was the claimed error one occurring at the trial? This question will be answered by determining at what point in the proceedings the trial began. Our Criminal Code (section 2136, Burns 1914) provides that, “The jury being impaneled and sworn, the trial shall proceed in the following order.” The order is then stated. But this order does not include any of the proceedings of the court prior to the swearing of the jury.

A plea of guilty on arraignment is not a trial in the sense that an error of law occurring at the trial may be presented by a motion for a new trial. Trattner v. State, 185 Ind. 188, 113 N. E. 243;Corwin v. Thomas, 83 Ind. 110.

Nor can a defendant in a criminal prosecution plead former jeopardy as a defense to a further prosecution for the same offense, unless in a court of competent jurisdiction he has been arraigned and pleaded, or has waived an arraignment, and a jury has been impaneled and sworn to try the cause presented by a legal indictment. Gillespie v. State, 168 Ind. 298, 80 N. E. 829;Morgan v. State, 13 Ind. 215.

The definition of the word “trial” as used in section 2158, clause 7, supra, and the clause relied on by appellant, is correctly defined in Bouvier's Law Dictionary as:

“The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue.”

And as said by Webster:

“In a criminal cause the term ‘trial’ is, however, generally restricted to proceedings subsequent to swearing in the jury.”

In Words and Phrases numerous authorities are cited in support of the statement that-

“In a criminal cause the term ‘trial’ does not include the arraignment, or any other merely preparatory proceeding which may be taken prior to the time of administering the requisite oath to the jury.” 8 Words and Phrases, First Series, p. 7099.

In Hunnel v. State, 86 Ind. 431, 434, this court held that a trial in a criminal case does not begin until the panel is completed and the jury sworn. See, also, Jenks v. State, 39 Ind. 1;Orear v. State, 22 Ind. App. 553, 556, 53 N. E. 249;Lindley v. Kemp, 38 Ind. App. 355, 76 N. E. 798;Commonwealth v. Soderquist, 183 Mass. 199, 66 N. E. 801;State v. Pancoast, 5 N. D. 516, 67 N. W. 958, 35 L. R. A. 518, 524.

The inference to be drawn from the foregoing citations leads us to conclude that by the forms of our law the various steps in a criminal case prior to the swearing of the jury must be regarded as preparatory to the trial. In the instant case the claimed erroneous ruling occurred before the jury was impaneled and sworn. Therefore under the authorities cited the ruling in question is not before this court for review as an error of law occurring at the trial.

[4] Appellant next insists that the court erred in giving to the jury on its own motion instruction No. 7. At the time the assault and battery was committed on Richman appellant was street commissioner for the city of Indianapolis. As such officer he certified to the board of works the correctness of the pay rolls for street improvements. The city council fixed the wages of all persons thus engaged, and appellant employed the men, and assigned them to the foreman having charge of such work. The pay rolls were made up from time sheets. Certain of these pay rolls, issued before and after the crime was committed, were introduced in evidence which, together with other evidence, tended strongly to prove irregularities or violations of law in connection therewith.

By the questioned instruction, briefly stated, the court expressly told the jury that any irregularities or violations of law in connection with these pay rolls, or in appellant's management of his office, would not alone warrant the jury in finding appellant guilty of the charge under consideration, and that they should not consider the pay rolls or payments issued or made before or after the crime was committed for any purpose other than as tending to show the relationship between appellant and others jointly indicted with him prior to and after the commission of the offense, as well as whether or not by such means appellant sought to keep quiet those engaged in the alleged offense, or as pay to them, or either of them as a reward for the unlawful act.

The objections urged against this instruction are that it is vague, uncertain, and confusing; that it was error to tell the jury that the pay roll evidence by itself would not warrant a conviction, without in the same connection advising it what evidence would be required to convict; that a fair inference to be drawn from the instruction is that, while the city pay rolls introduced in evidence tended to show violations of the law, and alone would not sustain a conviction, yet when supplemented with other evidence they would be sufficient; that the instruction had the effect of diverting the minds of the jurors from the issue to that of speculation and conjecture.

The record discloses an abundance of evidence tending to show that appellant was under the impression that the prosecuting witness was sending out literature regarding various candidates on the Democratic state ticket, tending to incite a religious prejudice by the voters against such candidates. For the purpose of stopping this supposed war on such candidates, he called Walters in counsel, whom he knew to be a fearless and dangerous person, with a view of having him organize a gang to “beat up” and administer to Richman rough treatment as well as to obtain the literature which Richman was supposed to possess. Walters, in effect, says that immediately after the interview between him and appellant, and as requested by appellant, he undertook to interest...